PEOPLE v. BRUNACHE (2020)

DECISION & ORDER

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

The defendant was convicted in Pennsylvania in 1999, upon his plea of guilty, of rape and involuntary deviate sexual intercourse. After a hearing pursuant to the Sex Offender Registration Act (see Correction Law art 6–C; hereinafter SORA), the defendant was assessed a total of 110 points, which presumptively classified him as a level three sex offender. The Supreme Court denied the defendant's application for a downward departure and designated him a level three sex offender. The defendant appeals, challenging the assessment of points under risk factor 1 and the denial of his request for a downward departure.

In establishing a sex offender's appropriate risk level under SORA, “[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]). Such facts may be established through the defendant's admissions, the victim's statements, and other relevant materials and evidence, including “reliable hearsay evidence,” which may come from, among other documents, evaluative reports completed by the supervising probation officer or case summaries prepared by the Board of Examiners of Sex Offenders (see People v. Mingo, 12 N.Y.3d 563, 571–572, 883 N.Y.S.2d 154, 910 N.E.2d 983; People v. Lema–Caguana, 179 A.D.3d 953, 954, 114 N.Y.S.3d 253, citing SORA: Risk Assessment Guidelines and Commentary at 5 [2006; hereinafter Guidelines] ).

Here, the defendant's contention that the Supreme Court erred in assessing him a total of 30 points under risk factor 1 because the People failed to prove that he was armed with a dangerous instrument at the time of the underlying offenses, as the People did not establish what a “crack cleaner” is and that it is capable of causing serious injury or death, is not preserved for appellate review (see People v. Gillotti, 23 N.Y.3d 841, 854, 994 N.Y.S.2d 1, 18 N.E.3d 701; People v. James, 165 A.D.3d 850, 850, 84 N.Y.S.3d 561). In any event, clear and convincing evidence, including the defendant's admissions, support the assessment of points under risk factor 1 (see People v. Parker, 145 A.D.3d 523, 43 N.Y.S.3d 43; cf. People v. Shen Chao Chen, 144 A.D.3d 1119, 1119, 42 N.Y.S.3d 284).

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. Burrowes, 177 A.D.3d 1005, 1007, 113 N.Y.S.3d 264, quoting 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). Here, the defendant failed to identify the existence of any such mitigating factor (see People v. Jimenez, 178 A.D.3d 1099, 1100, 115 N.Y.S.3d 86; People v. Curry, 158 A.D.3d 52, 60, 68 N.Y.S.3d 483).

Accordingly, we agree with the Supreme Court's designation of the defendant as a level three sex offender.

LEVENTHAL, J.P., ROMAN, COHEN and MILLER, JJ., concur.