PEOPLE v. MEDINA (2020)

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Queens County (Barry Kron, J.), dated April 3, 2018, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6–C.

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

In this proceeding pursuant to the Sex Offender Registration Act (see Correction Law art 6–C;  hereinafter SORA), the Supreme Court denied the defendant's request for a downward departure from his presumptive risk level, and designated him a level three sex offender (see Correction Law § 168–n).  The defendant challenges the denial of his request for a downward departure.

The Supreme Court failed to set forth findings of fact and conclusions of law, as mandated by Correction Law § 168–n(3) (see People v. Smith, 11 N.Y.3d 797, 798, 868 N.Y.S.2d 569, 897 N.E.2d 1050;  People v. Vega, 79 A.D.3d 718, 719, 911 N.Y.S.2d 917).  However, remittal is not required since the record in this case is sufficient for this Court to make its own findings of fact and conclusions of law (see People v. Rivera, 73 A.D.3d 881, 900 N.Y.S.2d 437;  People v. Pardo, 50 A.D.3d 992, 854 N.Y.S.2d 899).

Contrary to the defendant's contention, he failed to establish his entitlement to a downward departure from his presumptive risk level.  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 SORA:  Risk Assessment Guidelines and Commentary at 4 [2006] ).  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 defendant's remorse for his actions was adequately taken into account by the SORA Guidelines (see People v. Robinson, 145 A.D.3d 805, 806, 41 N.Y.S.3d 908;  People v. Santiago, 137 A.D.3d 762, 764, 26 N.Y.S.3d 339;  People v. Torres, 124 A.D.3d 744, 745–746, 998 N.Y.S.2d 464).  Further, the defendant failed to demonstrate how support from his family or a social worker established a lower likelihood of reoffense or danger to the community (see People v. Saintilus, 169 A.D.3d 838, 839, 94 N.Y.S.3d 128).

Accordingly, we affirm the Supreme Court's determination designating the defendant a level three sex offender.

BALKIN, J.P., CHAMBERS, COHEN, CONNOLLY and WOOTEN, JJ., concur.