PEOPLE v. MCMILLAN (2023)

ORDERED that the order is affirmed, without costs.

In the underlying criminal action, defendant was convicted, upon his plea of guilty, of forcible touching (Penal Law § 130.52 [1]). At a Sex Offender Registration Act (SORA) hearing pursuant to Correction Law article 6-C, defendant was assessed a total of 105 points under the risk assessment instrument, presumptively placing him within the range for a level two designation. However, based upon defendant's prior conviction of a felony sex crime, the Board of Examiners of Sex Offenders recommended that defendant be classified as a level three sex offender pursuant to an automatic override (see People v Balcerak, 212 AD3d 662 [2023]; People v Rhinehart, 210 AD3d 706 [2022]; People v Jones, 196 AD3d 515 [2021]). The Criminal Court designated defendant a level three sex offender and defendant appeals.

“The Risk Assessment Guidelines and Commentary promulgated by the Board of Examiners of Sex Offenders contain four overrides that automatically result in a presumptive risk assessment of level three” (People v Lobello, 123 AD3d 993, 994 [2014]; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 3 [2006] [hereinafter Guidelines]; People v Barr, 205 AD3d 741, 742 [2022]). “The first override, which is relevant to this appeal, is for a prior felony conviction of a sex crime” (People v McCurdy, 198 AD3d 991, 992 [2021]; see Guidelines at 3, 19). “The People bear the burden of proving the applicability of a particular override by clear and convincing evidence” (Lobello, 123 AD3d at 994; see Correction Law § 168-n [3]; People v Abdullah, 210 AD3d 704 [2022]). “Once the People have sustained this burden, ‘a SORA court is not possessed of any discretion in determining whether to apply [an] override; the application of the override is automatic’ ” (People v Johnson, 135 AD3d 720, 720-721 [2016], quoting People v Gordon, 133 AD3d 835, 836 [2015]).

Here, the People sustained their burden of proving, by clear and convincing evidence, the applicability of the override based on defendant's prior conviction of rape in the first degree (see People v Wolm, 209 AD3d 682 [2022]; see also People v Mingo, 12 NY3d 563, 573 [2009]). In light of our determination that an override was established, we need not reach defendant's challenge to the assessment of points under certain specified risk factors (see People v Hraklis, 214 AD3d 681 [2023]; Wolm, 209 AD3d at 683; Barr, 205 AD3d at 742; People v Berry, 138 AD3d 945 [2016]; People v Guitard, 57 AD3d 751 [2008]).

With respect to the hearing court's denial of defendant's request for a downward departure, 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 Guidelines 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).

Here, the alleged mitigating factors identified by defendant either were adequately taken into account by the Guidelines or did not warrant a downward departure (see Gillotti, 23 NY3d at 861; People v Smith, 168 AD3d 1006 [2019]; People v Ragabi, 150 AD3d 1161 [2017]; People v Ziliox, 145 AD3d 925 [2016]; People v Davis, 139 AD3d 1226 [2016]; People v Jackson, 139 AD3d 1031 [2016]).

Accordingly, the order is affirmed.

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