PEOPLE v. BEVEL (2023)

ORDERED that the order is affirmed, without costs.

At a Sex Offender Registration Act (SORA) hearing, the People presented the case summary of the Board of Examiners of Sex Offenders in support of the 115 points assessed against defendant in the risk assessment instrument (RAI). Defendant's attorney raised an objection to the 15 points assessed for drug and alcohol abuse, which points the court deducted under risk factor 9, leaving a total score of 100 points, placing defendant as a presumptive level two sex offender. Counsel requested a downward departure from the presumptive risk level. The Criminal Court denied defendant's request and designated defendant a level three sex offender based on an automatic override.

Defendant argues that the court should not have assessed 15 points under risk factor 14 because he was to be under supervision upon release from his incarceration on a felony conviction. Defendant did not raise this issue at the hearing and, as the issue is raised for the first time on appeal, it is not properly before this court (see People v Arocho, 82 AD3d 429 [2011]; People v Joe, 74 AD3d 404 [2010]).

Defendant further argues for a downward departure on the grounds that defendant had no disciplinary record while incarcerated, that defendant was to be supervised after release, and that defendant had a supportive family, vocational training and therapy.

Although in rendering its order, the Criminal Court did not set forth the “findings of fact and conclusions of law on which [its] determinations [were] based” (Correction Law § 168—n [3]), remittal is not required, as the record is sufficient for this court on appeal to make its own findings of fact and conclusions of law (see People v Finizio, 100 AD3d 977 [2012]; People v Harris, 93 AD3d 704 [2012]).

Even were we to reduce the total RAI score of 100 by the 15 points assessed under risk factor 14, leaving an assessment of 85 points, the score still remains at a level two sex offender. Moreover, under the circumstances presented, “the points assessed on the risk assessment instrument are irrelevant” since defendant was a presumptive level three sex offender pursuant to an automatic override for his felony conviction (see People v Hraklis, 214 AD3d 681, 682 [2023]; People v Guitard, 57 AD3d 751, 752 [2008]).

Courts apply three analytical steps to determine whether to order a downward departure (see People v Hatton, 72 Misc 3d 141[A], 2021 NY Slip Op 50838[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2021]). First, the defendant must identify mitigating circumstances that are of a kind, or to a degree, not adequately taken into account by the SORA guidelines (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4-5; People v Gillotti, 23 NY3d 841, 861-864 [2014]). Second, the defendant must prove the existence of those circumstances by a preponderance of the evidence (see Gillotti, 23 NY3d at 861-864; People v Kohout, 145 AD3d 922, 923 [2016]; People v Santiago, 137 AD3d 762 [2016]). Third, if the defendant satisfies the foregoing, “the law permits a departure, but the court still has discretion to refuse to depart or to grant a departure” (Gillotti, 23 NY3d at 861). In exercising this discretion, the court must “determine whether the totality of the circumstances warrants a departure to avoid an over ․ assessment of the defendant's dangerousness and risk of sexual recidivism” (id.; see Kohout, 145 AD3d at 923).

Upon a review of the record, we find that the mitigating factors raised by defendant at the SORA hearing regarding supervision after release, and the lack of a disciplinary record while incarcerated, were already adequately taken into account in the RAI under risk factors 13 (Conduct while confined) and 14 (Supervision) (see People v June, 150 AD3d 1701 [2017]).

Additionally, the mitigating factors cited by defendant, including his family relationships and the sex offender counseling treatment programs and vocational training he received while incarcerated, are outweighed by the seriousness of the underlying crime, which was committed against a 16-year-old female (see People v Baez, 157 AD3d 621 [2018]). Indeed, the totality of the circumstances does not warrant a downward departure so as to avoid an over assessment of defendant's dangerousness and risk of sexual recidivism (see Kohout, 145 AD3d at 923). Therefore, the Criminal Court did not improvidently exercise its discretion in declining to grant a downward departure (see People v Cabrera, 91 AD3d 479 [2012]; People v Corbett, 65 Misc 3d 152[A], 2019 NY Slip Op 51885[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

Accordingly, the order designating defendant a level three sex offender is affirmed.

TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.