| People v Shephard |
| 2012 NY Slip Op 08711 [101 AD3d 978] |
| December 19, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Jerome Shephard, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Anthea H. Bruffeeof counsel; Jesse Oppenheim on the brief), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (J. Goldberg, J.),dated April 20, 2011, which, after a hearing, designated him a level three sex offender pursuantto Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
The People bear the burden of establishing, by clear and convincing evidence, the factssupporting the assessment of points under the Guidelines issued by the Board of Examiners ofSex Offenders under New York's Sex Offender Registration Act (hereinafter SORA) (seeCorrection Law § 168, et seq.; Sex Offender Registration Act: Risk AssessmentGuidelines and Commentary at 5 [2006]; People v Harris, 100 AD3d 727 [2012]; People v Thompson, 95 AD3d977, 977 [2012]).
Here, as the defendant correctly contends, the People did not meet their burden ofestablishing that the defendant and the victim were strangers to each other. To the contrary, theevidence established that the victim had known the defendant since the defendant was a youngboy and, even though she did not know his name, she knew his nickname. Under thesecircumstances, the Supreme Court erred in assessing points under risk factor 7: RelationshipBetween Offender and Victim (see Guidelines at 2; People v McGraw, 24 AD3d 525, 526 [2005]).
Nonetheless, the Supreme Court's proper assessments of points in other categories, includingthe remaining categories that the defendant challenges on appeal, were sufficient to establish thatthe defendant was presumptively a level three offender. The fact that assessments in several ofthe categories may have stemmed from the defendant's mental illness did not result inimpermissible double counting. The assessments in these categories "represent cumulative, notduplicative, predictors of re-offense" (People v Pietarniello, 53 AD3d 475, 476 [2008]; cf. People v Howell, 82 AD3d857, 857 [2011]).
Moreover, the Supreme Court did not have the discretion to downwardly depart from thepresumptive risk level. A court has the discretion to downwardly depart from the presumptiverisk level in a SORA proceeding only after a defendant makes a twofold showing. First, adefendant must identify as a matter of law, an appropriate mitigating factor, namely, a factorwhich "tends to [*2]establish a lower likelihood of reoffense ordanger to the community and is of a kind, or to a degree, that is otherwise not adequately takeninto account by the Guidelines" (Peoplev Wyatt, 89 AD3d 112, 124 [2011]). Second, a defendant must prove by apreponderance of the evidence the facts necessary to support that mitigating factor (id. at114, 124). In the absence of that twofold showing, the court lacks discretion to depart from thepresumptive risk level (see People vMartin, 90 AD3d 728, 728-729 [2011]; People v Wyatt, 89 AD3d at 124). Here,the defendant failed to make that showing. Rivera, J.P., Balkin, Leventhal and Hinds-Radix, JJ.,concur.