PEOPLE v. CALL (2026)

DECISION & ORDER

Appeal by the defendant from an order of the County Court, Dutchess County (Edward T. McLoughlin, J.), dated December 27, 2022, 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 facts and in the exercise of discretion, without costs or disbursements, and the defendant is designated a level two sex offender.

The defendant was convicted, upon his plea of guilty, of two counts of rape in the second degree based on his sexual relations with a 14–year–old female (hereinafter the victim).  After a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6–C), the County Court assessed the defendant 80 points on the risk assessment instrument, rendering him a presumptive level two sex offender, denied the defendant's application for a downward departure to a level one designation, granted the People's application for an upward departure to a level three designation, and designated the defendant a level three sex offender.

“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 Guidelines, and whether the People adduced sufficient evidence to prove by clear and convincing evidence the existence of those aggravating circumstances” (People v Mayrhofer, 247 AD3d 1224, 1224;  see Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter Guidelines];  People v Gillotti, 23 NY3d 841, 861–862).  “When the People have met this burden, the court must then ‘exercise its discretion by weighing the aggravating and [any] mitigating factors to determine whether the totality of the circumstances warrants a departure to avoid an over- or under-assessment of the defendant's dangerousness and risk of sexual recidivism’ ” (People v Mayrhofer, 247 AD3d at 1224, quoting People v Gillotti, 23 NY3d at 861).

Here, the People failed to identify an aggravating factor that tends to establish a higher likelihood of reoffense or danger to the community not adequately taken into account by the risk assessment instrument (see People v Mott, 195 AD3d 756, 757;  People v Mota, 165 AD3d 988, 989).  The ongoing nature of the defendant's relationship with the victim, if anything, tended to demonstrate a lower likelihood of reoffense and danger to the community (see People v Hernandez, 213 AD3d 705, 707).  Accordingly, the County Court improvidently exercised its discretion in granting the People's application for an upward departure from the defendant's 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 Guidelines;  and (2) establishing the facts in support of its existence by a preponderance of the evidence” (People v Gadsen, 235 AD3d 667, 668 [internal quotation marks omitted];  see Guidelines at 4;  People v Gillotti, 23 NY3d at 861).  “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” (People v Gadsen, 235 AD3d at 668 [internal quotation marks omitted];  see People v Gillotti, 23 NY3d at 861).

Here, the County Court providently exercised its discretion in denying the defendant's application for a downward departure from his presumptive risk level.  Although a court may choose to depart from the presumptive risk level in an appropriate case where a victim's lack of consent is only due to the inability to consent by virtue of that victim's age, here, downward departure on this ground is not warranted.  The County Court considered, among other things, the substantial age disparity between the then 31–year–old defendant and the victim who was 14–years–old at the time the defendant began sexual relations with her starting in 2012 (see People v Saul, 220 AD3d 892, 894;  People v Permenter, 208 AD3d 905, 907).  Further, the alleged additional mitigating factors identified by the defendant either were adequately taken into account by the Guidelines (see People v Gillotti, 23 NY3d at 861;  People v Hernandez, 225 AD3d 903, 904), or did not warrant a downward departure (see People v Amaya, 245 AD3d 743, 744;  People v Skipper, 235 AD3d 671, 672).

Accordingly, the County Court providently exercised its discretion in denying the defendant's application for a downward departure from his presumptive risk level, but should have denied the People's application for an upward departure.  Consequently, we designate the defendant a level two sex offender (see People v Mott, 195 AD3d at 758).

DUFFY, J.P., WOOTEN, GOLIA and HOM, JJ., concur.