PEOPLE v. MORONTA (2026)

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Queens County (Karen Gopee, J.), dated November 24, 2025, 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.

The defendant was convicted, upon his plea of guilty, of four counts of sexual abuse of a ward (see 18 USC § 2243[b] ).  After a hearing pursuant to the Sex Offender Registration Act (SORA) (Correction Law art 6–C), the Supreme Court assessed the defendant a total of 75 points on the risk assessment instrument, denied the defendant's application for a downward departure from his presumptive risk level, and designated him a level two sex offender.  The defendant appeals.

In establishing a defendant's risk level pursuant to SORA, the People bear the burden of establishing facts supporting the determination sought by clear and convincing evidence (see People v. Gurdon, 243 A.D.3d 692, 692, 242 N.Y.S.3d 793;  People v. Robinson, 242 A.D.3d 1130, 1130, 243 N.Y.S.3d 779).  In assessing points, evidence may be derived from the defendant's admissions, the victim's statements, evaluative reports completed by the supervising probation officer, parole officer, or corrections counselor, case summaries prepared by the Board of Examiners of Sex Offenders, or any other reliable source, including reliable hearsay (see People v. Dowd, 248 A.D.3d 950, 951, 256 N.Y.S.3d 256;  People v. Polanco–Lopez, 239 A.D.3d 778, 779, 233 N.Y.S.3d 740).

Contrary to the defendant's contention, the Supreme Court properly assessed points under risk factor 7, as the People established, by clear and convincing evidence, that the defendant's crimes arose in the context of a professional and/or vocational relationship with the victims and were an abuse of that relationship (see Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 12 [2006] [hereinafter Guidelines] ).  The defendant was employed as a correctional officer at a facility where the victims were inmates.  Under these circumstances, the court properly concluded that the relationship between the defendant and the victims constituted a “professional relationship” within the meaning of SORA (see People v. Robinson, 242 A.D.3d at 1131, 243 N.Y.S.3d 779;  People v. Parisi, 212 A.D.3d 666, 667, 181 N.Y.S.3d 620;  People v. Somodi, 170 A.D.3d 1056, 1057–1058, 94 N.Y.S.3d 586).

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 Guidelines;  and (2) establishing the facts in support of its existence by a preponderance of the evidence (see People v. Williams, 248 A.D.3d 1146, 1147, 257 N.Y.S.3d 398;  People v. Siler, 247 A.D.3d 1226, 1229, 255 N.Y.S.3d 338).  If the defendant makes that twofold showing, the SORA 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. Williams, 248 A.D.3d at 1147, 257 N.Y.S.3d 398;  People v. Laboriel, 210 A.D.3d 916, 917, 179 N.Y.S.3d 127).

Here, the Supreme Court providently exercised its discretion in denying the defendant's application for a downward departure.  Contrary to the defendant's contention, the fact that the total of 75 points fell on the lower end of the risk level two designation does not warrant a downward departure (see People v. Williams, 248 A.D.3d at 1148, 257 N.Y.S.3d 398).  Further, the defendant failed to demonstrate how having support from his family established a lower likelihood of reoffense or danger to the community (see People v. Siler, 247 A.D.3d at 1229, 255 N.Y.S.3d 338;  People v. Peoples, 189 A.D.3d 1282, 1283, 137 N.Y.S.3d 381).  The remaining alleged mitigating factors were adequately taken into account by the Guidelines (see People v. Sheffield, 244 A.D.3d 1263, 1264, 249 N.Y.S.3d 172;  People v. Stafford, 240 A.D.3d 718, 719, 238 N.Y.S.3d 509;  People v. Laboriel, 210 A.D.3d at 917, 179 N.Y.S.3d 127).

IANNACCI, J.P., VOUTSINAS, TAYLOR and MCCORMACK, JJ., concur.