PEOPLE v. TORRES (2019)

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Queens County (Gia Morris, J.), dated August 11, 2017, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6–C.

ORDERED that the order is reversed, on the law, without costs or disbursements, and the defendant is designated a level two sex offender.

A departure from the presumptive risk level is generally the exception, not the rule (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter SORA Guidelines]; People v. Howard, 27 N.Y.3d 337, 341, 33 N.Y.S.3d 132, 52 N.E.3d 1158; People v. Johnson, 11 N.Y.3d 416, 421, 872 N.Y.S.2d 379, 900 N.E.2d 930; People v. Simmons, 170 A.D.3d 904, 93 N.Y.S.3d 862).  “Where, as here, the People seek an upward departure from the presumptive risk level, the court must determine whether the aggravating circumstances alleged to show a higher likelihood of the defendant's reoffense are, as a matter of law, of a kind or to a degree not adequately taken into account by the SORA [G]uidelines, and whether the People adduced sufficient evidence to prove by clear and convincing evidence the existence of those aggravating circumstances” (People v. Paul, 168 A.D.3d 1004, 1005, 92 N.Y.S.3d 104; see People v. Gillotti, 23 N.Y.3d 841, 861–862, 994 N.Y.S.2d 1, 18 N.E.3d 701; People v. Del Rosario, 170 A.D.3d 759, 93 N.Y.S.3d 580, lv granted 33 N.Y.3d 1053, 103 N.Y.S.3d 26, 126 N.E.3d 1066).  “ ‘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. Clark, 169 A.D.3d 836, 836, 92 N.Y.S.3d 379, quoting People v. Ragabi, 150 A.D.3d 1161, 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; People v. Del Rosario, 170 A.D.3d at 759, 93 N.Y.S.3d 580).  A defendant's commission of uncharged sex crimes may warrant an upward departure where the uncharged sex crimes have not been accounted for in the risk assessment instrument (see People v. Woodson, 156 A.D.3d 832, 833, 66 N.Y.S.3d 27; People v. DeWoody, 127 A.D.3d 831, 832, 6 N.Y.S.3d 290; see also People v. Auger, 162 A.D.3d 1082, 1083, 80 N.Y.S.3d 334).

Here, although the defendant's presumptive risk level was level two, the People contended that an upward departure was warranted based upon evidence that, approximately three months before the charged crime was committed, the defendant committed an uncharged sex offense against a different victim who allegedly was 15 years old at the time.  While the People presented DNA evidence establishing that the defendant had sexual contact with the second alleged victim, the only evidence of that alleged victim's age was a statement in a police report that she was 15 years old, and, since the police report stated that the alleged victim's sexual contact with the defendant was willing, the bare notation of the victim's age was the only proof of the crime on which the People relied.  Thus, the Supreme Court should not have granted an upward departure since the evidence of the alleged victim's age was not supported by a “detailed victim statement[ ]” (People v. Maldonado, 147 A.D.3d 798, 800, 45 N.Y.S.3d 587; see People v. Vasquez, 167 A.D.3d 789, 789–790, 87 N.Y.S.3d 485; People v. Davis, 130 A.D.3d 598, 599–600, 12 N.Y.S.3d 280) or otherwise corroborated (see People v. Briggs, 86 A.D.3d 903, 904–905, 928 N.Y.S.2d 108).  Accordingly, the court should have designated the defendant a level two sex offender.

LEVENTHAL, J.P., MALTESE, BARROS and CONNOLLY, JJ., concur.