PEOPLE v. GUADELOUPE (2019)

DECISION & ORDER

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

After a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6–C;  hereinafter SORA), the Supreme Court assessed the defendant a total of 80 points, which was within the range for a presumptive designation as a level two sex offender.  The court, however, granted the People's request for an upward departure to a level three designation.  On appeal, the defendant challenges the assessment of points under risk factors 12 and 13, and the granting of the People's request for an upward departure to designate him a level three sex offender.

In establishing a defendant's risk level pursuant to SORA, the People bear the burden of establishing the facts supporting the determination sought by clear and convincing evidence (see Correction Law § 168–n[3];  People v. Holmes, 166 A.D.3d 821, 822, 85 N.Y.S.3d 792;  People v. LeGrand, 152 A.D.3d 722, 722, 55 N.Y.S.3d 905;  People v. Crandall, 90 A.D.3d 628, 629, 934 N.Y.S.2d 446).  Here, we agree with the Supreme Court's assessment of 10 points under risk factor 12, since the People established, by clear and convincing evidence, that the defendant had not genuinely accepted responsibility for his conduct (see Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 15–16 [2006] [hereinafter SORA Guidelines];  People v. Fonteboa, 149 A.D.3d 880, 881, 49 N.Y.S.3d 911;  People v. Benitez, 140 A.D.3d 1140, 1140–1141, 35 N.Y.S.3d 377;  People v. Jackson, 134 A.D.3d 1580, 1581, 22 N.Y.S.3d 749;  People v. Mosley, 106 A.D.3d 1067, 1068, 965 N.Y.S.2d 632).  In this regard, the People relied upon, inter alia, the defendant's responses during his probation interview and recent treatment records showing that the defendant “needs to work on taking full responsibility and accountability of offense without minimizing and justifying his behaviors.”

We also agree with the Supreme Court's assessment of 10 points under risk factor 13, since the People established, by clear and convincing evidence, that the defendant's conduct while confined was unsatisfactory.  The case summary indicated that the defendant incurred multiple disciplinary violations while he was incarcerated, including 2 tier III disciplinary violations and 21 tier II disciplinary violations (see People v. Holmes, 166 A.D.3d at 822, 85 N.Y.S.3d 792;  People v. Marquez, 165 A.D.3d 986, 987, 84 N.Y.S.3d 572;  People v. Lima–Sanchez, 162 A.D.3d 698, 698–699, 79 N.Y.S.3d 52;  People v. Bower, 157 A.D.3d 833, 66 N.Y.S.3d 634).

“An upward departure from the presumptive risk level is permitted only if the court determines, upon clear and convincing evidence, that there exists an aggravating ․ factor of a kind, or to a degree, that is otherwise not adequately taken into account by the SORA guidelines” (People v. Brown, 163 A.D.3d 727, 728, 81 N.Y.S.3d 412 [internal quotation marks omitted];  see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701).  Contrary to the defendant's contention, the People proved, by clear and convincing evidence, that aggravating factors to a degree not adequately taken into account by the SORA Guidelines existed.  These aggravating factors included the degree of violence used by the defendant in the underlying offense, the defendant's protracted criminal history, which includes numerous prior violent criminal convictions, and the extensive number of his infractions while incarcerated.  Accordingly, the Supreme Court providently exercised its discretion in granting the People's request for an upward departure (see People v. Brown, 163 A.D.3d at 728, 81 N.Y.S.3d 412;  People v. Mudd, 43 A.D.3d 1128, 1129, 843 N.Y.S.2d 135), and the defendant was properly designated a level three sex offender.

LEVENTHAL, J.P., DUFFY, BARROS and IANNACCI, JJ., concur.