PEOPLE v. GREGORY (2025)

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Queens County (Ushir Pandit–Durant, J.), dated September 20, 2024, which, after a hearing, designated him a level three sexually violent offender pursuant to Correction Law article 6–C.

ORDERED that the order is reversed, on the law, without costs or disbursements, and the defendant is designated a level two sexually violent offender.

The defendant was convicted, upon his plea of guilty, of sexual abuse in the first degree (Penal Law § 130.65[1]).  After a hearing conducted pursuant to the Sex Offender Registration Act (SORA) (Correction Law art 6–C), the Supreme Court assessed the defendant 115 points on the risk assessment instrument, resulting in a presumptive risk level three designation, denied the defendant's application for a downward departure from the presumptive risk level, and designated the defendant a level three sexually violent offender.  The defendant appeals, challenging the assessment of 15 points under risk factor 11, 15 points under risk factor 12, and the denial of his application for a downward departure from the presumptive risk level.

“In establishing a defendant's risk level pursuant to SORA, the People bear the burden of establishing the facts supporting the determination sought by clear and convincing evidence” (People v. Otero, 233 A.D.3d 969, 970, 222 N.Y.S.3d 665 [internal quotation marks omitted];  see Correction Law § 168–n[3]).

“A refusal to participate in a sex offender treatment program demonstrates an unwillingness to accept responsibility for the crime” (People v. Staton, 186 A.D.3d 1735, 1736, 129 N.Y.S.3d 794;  see People v. Diaz, 169 A.D.3d 727, 727, 92 N.Y.S.3d 151).  For the purpose of assessing points under risk factor 12, the Guidelines “assess 10 points to an offender who has not accepted responsibility for his [or her] conduct and 15 points are assessed to an offender who has refused or been expelled from a sex offender program” (Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary [hereinafter Guidelines] at 15 [2006];  see People v. Hagen, 193 A.D.3d 991, 991, 142 N.Y.S.3d 833).  Thus, the Guidelines “add five points if the offender has refused or been expelled from treatment since such conduct is powerful evidence of the offender's continued denial and his [or her] unwillingness to alter his [or her] behavior” (Guidelines at 16;  see People v. Hagen, 193 A.D.3d at 991, 142 N.Y.S.3d 833).  “The risk assessment guidelines do not contain exceptions with respect to a defendant's reasons for refusing to participate in treatment” (People v. Staton, 186 A.D.3d at 1736, 129 N.Y.S.3d 794 [internal quotation marks omitted]).  “Such evidence is only relevant in considering a request for [a] downward departure” (id. [internal quotation marks omitted]).  Here, the Supreme Court properly assessed the defendant 15 points under risk factor 12 for not accepting responsibility and refusing treatment (see People v. Zachary, 188 A.D.3d 935, 937, 132 N.Y.S.3d 334;  People v. Staton, 186 A.D.3d at 1736, 129 N.Y.S.3d 794;  People v. Diaz, 169 A.D.3d at 727, 92 N.Y.S.3d 151).

However, the Supreme Court erred in assessing 15 points under risk factor 11 for history of drug or alcohol abuse.  “In order to support the assessment of points under risk factor 11, ․ the People must show by clear and convincing evidence that the offender used drugs or alcohol in excess either at the time of the crime or repeatedly in the past” (People v. Leon, 172 A.D.3d 765, 766, 97 N.Y.S.3d 497 [alteration and internal quotation marks omitted];  see People v. Palmer, 20 N.Y.3d 373, 378, 960 N.Y.S.2d 719, 984 N.E.2d 917).  Here, the People failed to present clear and convincing evidence that the defendant's marijuana use on the date of the offense was excessive or “causally linked to the sexual assault” (People v. Palmer, 20 N.Y.3d at 379, 960 N.Y.S.2d 719, 984 N.E.2d 917;  cf.  People v. Villanueva, 143 A.D.3d 794, 794, 38 N.Y.S.3d 805).  The People's evidence was also insufficient to establish that the defendant used marijuana or other substances in excess repeatedly in the past (see People v. Daniel, 196 A.D.3d 653, 655, 148 N.Y.S.3d 389;  People v. Leon, 172 A.D.3d at 766, 97 N.Y.S.3d 497).  Without the assessment of points under risk factor 11, the defendant's point total was 100, which is within the range for a presumptive level two designation.

The Supreme Court properly denied the defendant's application for a downward departure from his presumptive risk level (see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701).  The mitigating factors cited by the defendant, including his family support, expressions of remorse, and sex offense history, either were adequately taken into account by the Guidelines, did not otherwise establish a lower likelihood of reoffense, or were not supported by a preponderance of the evidence (see People v. Barrott, 199 A.D.3d 1029, 1030, 154 N.Y.S.3d 803;  People v. Zapata, 186 A.D.3d 761, 762, 127 N.Y.S.3d 280;  People v. Saintilus, 169 A.D.3d 838, 839, 94 N.Y.S.3d 128;  cf.  People v. Fisher, 177 A.D.3d 615, 616, 111 N.Y.S.3d 80).

Accordingly, the defendant should be designated a level two sexually violent offender.

CHAMBERS, J.P., VOUTSINAS, TAYLOR and HOM, JJ., concur.