PEOPLE v. SUAREZ (2018)

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Ann Donnelly, J.), dated June 25, 2014, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6–C.

ORDERED that the order is affirmed, without costs or disbursements.

In establishing an offender's appropriate risk level under the Sex Offender Registration Act (see Correction Law art 6–C), “[t]he People ‘bear the burden of proving the facts supporting the determinations’ by clear and convincing evidence” (People v. Pettigrew, 14 N.Y.3d 406, 408, 901 N.Y.S.2d 569, 927 N.E.2d 1053, quoting Correction Law § 168–n[3];  see People v. Mingo, 12 N.Y.3d 563, 571, 883 N.Y.S.2d 154, 910 N.E.2d 983).

Contrary to the defendant's contention, the People established by clear and convincing evidence that he was armed with a dangerous instrument during one of the instances of sexual misconduct forming the basis for his conviction, warranting the assessment of 30 points under risk factor 1 (see People v. Sincerbeaux, 27 N.Y.3d 683, 688, 37 N.Y.S.3d 39, 57 N.E.3d 1076;  People v. Dash, 111 A.D.3d 907, 908, 977 N.Y.S.2d 39;  People v. Hines, 24 A.D.3d 524, 525, 807 N.Y.S.2d 608).

Where, as here, the People seek an upward departure, they must identify an aggravating factor that tends to establish a higher likelihood of reoffense or danger to the community not adequately taken into account by the risk assessment instrument (hereinafter RAI), and prove the facts in support of the aggravating factor by clear and convincing evidence (see People v. Ragabi, 150 A.D.3d 1161, 1161, 52 N.Y.S.3d 655;  see also People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701).  “Once this burden is satisfied, the court may, in its discretion, choose to upwardly depart if the factor indicates that the point score on the risk assessment instrument has resulted in an underassessment of the offender's actual risk to the public” (People v. Ragabi, 150 A.D.3d at 1161, 52 N.Y.S.3d 655;  see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701).

Here, the People established that the extended duration of the sexual misconduct and the defendant's intent to rape the victim were aggravating factors not adequately taken into account by the RAI (see People v. Davis, 130 A.D.3d 598, 600, 12 N.Y.S.3d 280;  People v. Lucius, 122 A.D.3d 819, 819, 996 N.Y.S.2d 659;  see also People v. Robinson, 150 A.D.3d 775, 775–776, 54 N.Y.S.3d 74), and the Supreme Court providently exercised its discretion in granting the People's application for an upward departure, designating him as a level three sex offender.

The defendant's application for a downward departure was properly denied (see People v. Curthoys, 77 A.D.3d 1215, 1217, 909 N.Y.S.2d 824;  see also People v. Grubbs, 107 A.D.3d 771, 773, 967 N.Y.S.2d 112;  cf. People v. Stevens, 55 A.D.3d 892, 894, 867 N.Y.S.2d 108).

MASTRO, J.P., COHEN, CONNOLLY and BRATHWAITE NELSON, JJ., concur.