PEOPLE v. SPRINKLER (2018)

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Richmond County (Leonard P. Rienzi, J.), dated September 26, 2014, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6–C.

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

Correction Law § 168–l(8) provides that a failure by a state or local agency to act or by a court to render a determination within the time period specified by the Sex Offender Registration Act (see Correction Law art 6–C;  hereinafter SORA) shall not affect the obligation of a sex offender to register or verify under SORA, nor shall such failure prevent a court from making a determination regarding the sex offender's risk level.  Contrary to the defendant's contention, the delay in holding a hearing to determine his risk level pursuant to SORA was not so “outrageously arbitrary” as to constitute a gross abuse of governmental authority (People v. Gonzalez, 138 A.D.3d 814, 815, 29 N.Y.S.3d 542;  see People v. Gallagher, 129 A.D.3d 1252, 1253, 11 N.Y.S.3d 712;  People v. Wilkes, 53 A.D.3d 1073, 1074, 862 N.Y.S.2d 232;  cf. People v. Gregory, 71 A.D.3d 1559, 1560, 897 N.Y.S.2d 665).

“[U]tilization of the risk assessment instrument will generally ‘result in the proper classification in most cases so that departures will be the exception not the rule’ ” (People v. Guaman, 8 A.D.3d 545, 545, 778 N.Y.S.2d 704, quoting SORA:  Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter Guidelines];  see People v. Boyd, 121 A.D.3d 658, 658, 993 N.Y.S.2d 184).  The general rule is that a SORA court has the discretion to depart from the presumptive risk level only if “ ‘special circumstances’ ” warrant such departure (People v. Wyatt, 89 A.D.3d 112, 119, 931 N.Y.S.2d 85 [emphasis omitted], quoting Guidelines at 4;  see People v. Mitchell, 142 A.D.3d 542, 544, 36 N.Y.S.3d 490).

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 at 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 Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 4 [2006] ).  “In determining whether to exercise that discretion, the court must examine ‘all circumstances relevant to the offender's risk of reoffense and danger to the community’ ” (People v. Marsh, 116 A.D.3d 680, 682, 983 N.Y.S.2d 91, quoting People v. Wyatt, 89 A.D.3d at 128, 931 N.Y.S.2d 85).  Although lengthy periods of time during which the defendant has been at liberty after the offense are not taken into account by the Guidelines or the Risk Assessment Instrument (see People v. Sotomayer, 143 A.D.3d 686, 687, 38 N.Y.S.3d 271;  People v. Abdullah, 31 A.D.3d 515, 516, 818 N.Y.S.2d 267), here, the defendant failed to establish by a preponderance of the evidence that, in the time since his conviction for a sex offense, he has led an exemplary life such that he was entitled to a downward departure from the presumptive risk level (cf. People v. Abdullah, 31 A.D.3d at 516, 818 N.Y.S.2d 267).  Accordingly, we agree with the Supreme Court's determination to deny, after a hearing, the defendant's application for a downward departure to risk level one.

ROMAN, J.P., SGROI, CONNOLLY and CHRISTOPHER, JJ., concur.