| People v Madison |
| 2012 NY Slip Op 05917 [98 AD3d 573] |
| August 8, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v DialloMadison, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy,and Susan E. Park of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Dowling, J.),dated December 24, 2009, which, after a hearing, designated him a level two sexually violent sexoffender pursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
The defendant contends that the Supreme Court erred in denying his request for a downwarddeparture from a risk level two to a risk level one pursuant to the Sex Offender Registration Act(see Correction Law art 6-C; hereinafter SORA) following a risk assessment hearing(hereinafter the hearing).
The defendant was scored as a presumptive risk level three pursuant to a risk assessmentinstrument (hereinafter the RAI) which was utilized at his hearing. However, at the hearing, theSupreme Court found that the People had only demonstrated facts in support of a risk level twodesignation by clear and convincing evidence (see People v Wyatt, 89 AD3d 112, 118 [2011]). Specifically,despite being assessed 10 points under risk factor 13 ("Conduct whileconfined/supervised—Unsatisfactory") pursuant to the RAI, the Supreme Court found, ineffect, that the People failed to present proof sufficient to assess the defendant points under thiscategory by clear and convincing evidence. This had the effect of lowering the defendant's overallscore from 110 to 100, which placed him in the level two range (id. at 115). Thedefendant also applied for a downward departure to level one. To the extent that the SupremeCourt failed to consider the defendant's argument at the hearing that evidence of his allegedrehabilitation since the subject offense warranted a downward departure to level one, the recordis sufficient for this Court to make its own determination thereof (see People v Fernandez, 91 AD3d737 [2012]).[*2]
" 'Generally, the Board or a court may not depart from thepresumptive risk level unless it concludes that there exists an aggravating or mitigating factor ofa kind, or to a degree, that is otherwise not adequately taken into account by the guidelines. . . Circumstances that may warrant a departure cannot, by their very nature, becomprehensively listed in advance' " (People v Wyatt, 89 AD3d at 119, quoting SORA:Risk Assessment Guidelines and Commentary at 4 [2006]; see People v Mingo, 12 NY3d 563, 568 n 2 [2009]). Here, at thehearing, the defendant argued, in effect, that he has been rehabilitated since incarceration andevinced a low risk of reoffense, warranting a level one designation.
Rehabilitation on the basis of the totality of the record is a mitigating factor that is not takeninto account by the Guidelines or the RAI (see People v Abdullah, 31 AD3d 515, 516 [2006]). At the thresholdlevel, the defendant met his initial factual burden of establishing the existence of this mitigatingfactor by a preponderance of the evidence (see SORA: Risk Assessment Guidelines andCommentary at 2 [2006]; People v Wyatt, 89 AD3d at 128). However, in the exercise ofthis Court's discretion, and based upon an examination of all circumstances relevant to theoffender's risk of reoffense and danger to the community (see People v Wyatt, 89 AD3dat 128), we conclude that the defendant was not entitled to a downward departure to risk levelone. The defendant presented proof that he had experienced positive personal gains whileincarcerated and demonstrated that during the latter years of his prison term he was an exemplaryinmate. Nevertheless, the proof also established that, viewing the defendant's conduct throughoutthe totality of his prison term, he had, inter alia, been repeatedly involved with using drugs, andhad been convicted of promoting prison contraband. Additionally, we find that the egregiousnature of the underlying crime outweighs any mitigation that would warrant a departure to risklevel one. Specifically, as was established at the defendant's hearing, he approached the victim, astranger on the street, told her he had a gun in his pocket, robbed her, and forced her to climb afence where there was a grassy hill. There, he forced her to the ground and rubbed his penisagainst her buttocks under her clothing while threatening to shoot her if she did not follow hiscommands. This assault only ceased when the defendant was noticed by a police officer, whoapprehended the defendant after a brief chase. Accordingly, based on the foregoing, we find thatthe defendant has not demonstrated appropriate mitigating factors which would establish a lowlikelihood of reoffense or danger to the community (id. at 128; see CorrectionLaw § 168-l [5]). Thus, the defendant is not entitled to a downward departure torisk level one (see People v Bowles,89 AD3d 171 [2011]), and his risk level was properly assessed at level two. Florio, J.P.,Chambers, Hall and Miller, JJ., concur.