PEOPLE v. MACEDONIO (2026)

DECISION & ORDER

Appeals by the defendant from two orders of the County Court, Suffolk County (Karen M. Wilutis, J.), both dated February 8, 2023, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6–C.

ORDERED that the orders are affirmed, without costs or disbursements.

The defendant was convicted under Indictment No. 402/71, inter alia, of rape in the first degree, and under Indictment No. 1237/71, among other things, of rape in the first degree and murder in the second degree.  At a hearing to designate the defendant's risk level pursuant to the Sex Offender Registration Act (Correction Law art 6–C) with respect to each judgment of conviction, the defendant sought a downward departure from his presumptive risk designation.  The County Court denied the downward departure application and in two orders, both dated February 8, 2023, designated the defendant a level three sex offender.  The defendant appeals.

“An offender seeking a downward departure from the presumptive risk level has the initial burden of (1) identifying, as a matter of law, an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is not otherwise taken into account by the Guidelines, and (2) establishing the facts in support of its existence by a preponderance of the evidence” (People v. Curry, 158 A.D.3d 52, 58, 68 N.Y.S.3d 483;  see Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter Guidelines];  People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701).  If the defendant makes that twofold showing, the court must exercise its discretion by weighing the mitigating factor to determine whether the totality of the circumstances warrants a departure to avoid an overassessment of the defendant's dangerousness and risk of sexual recidivism (see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701;  People v. Bigelow, 175 A.D.3d 1443, 107 N.Y.S.3d 406).

Here, the defendant's acceptance of responsibility and demonstration of remorse, as well as his disciplinary record in prison, are already taken into account by risk factors 12 and 13, respectively, and, thus, do not properly serve as mitigating factors (see People v. Musarra, 240 A.D.3d 624, 625, 238 N.Y.S.3d 274;  People v. Watts, 225 A.D.3d 638, 639, 207 N.Y.S.3d 99).  Similarly, the defendant's score on an alternate risk assessment instrument does not, by itself, constitute a mitigating factor justifying a downward departure from the presumptive risk level (see People v. Bell, 237 A.D.3d 863, 864–865, 232 N.Y.S.3d 61;  People v. Rolon, 210 A.D.3d 708, 709, 178 N.Y.S.3d 98).

While “[r]ehabilitation on the basis of the totality of the record is a mitigating factor that is not taken into account by the Guidelines” (People v. Madison, 98 A.D.3d 573, 574, 949 N.Y.S.2d 701), the defendant did not prove by a preponderance of the evidence the facts in support of this alleged mitigating factor (see People v. Abdullah, 210 A.D.3d 704, 706, 178 N.Y.S.3d 94;  People v. Haims, 203 A.D.3d 1184, 1186, 163 N.Y.S.3d 443).

Finally, although the defendant submitted sufficient proof that his physical condition, due to his advanced age and debilitating illnesses, constituted a mitigating factor (see Guidelines at 5;  People v. Davis, 179 A.D.3d 183, 189, 115 N.Y.S.3d 350), under the totality of the circumstances, including the extreme violence of the defendant's crimes, which involved the murder of one of his victims, the level three designation best assesses the risk of reoffense by the defendant and the threat posed to the public should he reoffend (see People v. Abdullah, 210 A.D.3d at 706, 178 N.Y.S.3d 94;  People v. Douglas, 189 A.D.3d 1276, 1278, 134 N.Y.S.3d 208).

Accordingly, we affirm the orders designating the defendant a level three sex offender.

DILLON, J.P., IANNACCI, DOWLING and MCCORMACK, JJ., concur.