PEOPLE v. FIELDS (2020)

DECISION & ORDER

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

The defendant was convicted, upon his plea of guilty, of rape in the third degree. After a hearing pursuant to the Sex Offender Registration Act (see Correction Law art 6–C; hereinafter SORA), the Supreme Court designated the defendant a level three sex offender. On appeal, the defendant challenges the court's assessment of 20 points under risk factor 7 (relationship with the victim) and 10 points under risk factor 12 (acceptance of responsibility). Moreover, the defendant contends that the court erred in denying his request for a downward departure from the presumptive risk level.

We agree with the Supreme Court's assessment of 20 points under risk factor 7 (see SORA: Risk Assessment Guidelines and Commentary at 12 [2006; hereinafter Guidelines] ). The grand jury testimony of the complainant revealed that she had never seen the defendant prior to the evening of the instant offense (see People v. Lewis, 178 A.D.3d 864, 111 N.Y.S.3d 868; People v. Mitchell, 142 A.D.3d 542, 543, 36 N.Y.S.3d 490; People v. Mabee, 69 A.D.3d 820, 893 N.Y.S.2d 585).

In addition, the People presented clear and convincing evidence that the defendant did not genuinely accept responsibility for his conduct, thus warranting the assessment of 10 points under risk factor 12 (see Guidelines at 15–16; People v. Fonteboa, 149 A.D.3d 880, 881, 49 N.Y.S.3d 911; People v. Benitez, 140 A.D.3d 1140, 35 N.Y.S.3d 377).

Moreover, we agree with the Supreme Court's determination denying the defendant's request for a downward departure from the presumptive designation as a level three sex offender. A defendant 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 otherwise not adequately taken into account by the [SORA] Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence” (People v. Wyatt, 89 A.D.3d 112, 128, 931 N.Y.S.2d 85; see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701; see also Guidelines at 4). 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. Champagne, 140 A.D.3d 719, 720, 31 N.Y.S.3d 218).

Here, the alleged mitigating factors identified by the defendant either were adequately taken into account by the Guidelines or were not proven by a preponderance of the evidence.

RIVERA, J.P., MALTESE, BARROS, BRATHWAITE NELSON and IANNACCI, JJ., concur.