| People v Marsh |
| 2014 NY Slip Op 02274 [116 AD3d 680] |
| April 2, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Jordan Marsh, Appellant. |
—[*1] Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, MorganJ. Dennehy, and Arieh Schulman of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County(Brennan, J.), dated October 14, 2011, which, after a hearing, designated him a level twosex offender pursuant to Correction Law article 6-C.
Ordered that the order is reversed, on the law and in the exercise of discretion,without costs or disbursements, and the defendant is designated a level one sex offender.
In early 2005, when the defendant was 26 years old, he had sexual intercourse inNew Hampshire with a 15-year-old girl. For that crime, the defendant was convicted offelonious sexual assault, which prohibits sexual intercourse with a victim who is under16 years of age where the age difference between the defendant and the victim is fouryears or more (see NH Rev Stat Ann § 632-A:3 [II]). The defendantbecame subject to New York's Sex Offender Registration Act (hereinafter SORA)(see Correction Law § 168 et seq.) upon moving to New York(see Correction Law §§ 168-a [2] [d]; 168-k). In 2011, the SupremeCourt conducted a SORA hearing and designated the defendant a level two sex offender,declining to downwardly depart from the presumptive risk level. The defendant appeals.
The People bear the burden of establishing, by clear and convincing evidence, thefacts supporting the assessment of points under the Guidelines issued by the Board ofExaminers of Sex Offenders under SORA (see Correction Law § 168-n[3]; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5[2006]; People v Harris,100 AD3d 727, 727 [2012]; People v Thompson, 95 AD3d 977, 977 [2012]). Onappeal, the defendant first contends that the hearing court erroneously assessed him 15points under risk factor 11 (Drug or Alcohol Abuse), based on his alleged use ofmarijuana. The Guidelines provide for points in this category because drug and alcoholabuse are "highly associated" with sex offending, not as a cause of offending, but as a"disinhibitor and therefore . . . a precursor to offending" (Sex OffenderRegistration Act: Risk Assessment Guidelines and Commentary at 15). Under risk factor11, possession of marijuana does not, in itself, amount to drug abuse (see People vThompson, 95 AD3d at 978; cf. People v Palmer, 20 NY3d 373 [2013]). There was noevidence presented at the hearing that the defendant ever abused marijuana. Therefore,we agree with the defendant that the hearing court erred in assessing points under thisrisk factor (see People v Thompson, 95 AD3d at 978).
Even after deducting the 15 points assessed under risk factor 11, the defendant is still[*2]a presumptive level two sex offender. The defendantthus further contends that the hearing court improvidently exercised its discretion indenying his request that it depart from the presumptive risk level to find that he is a levelone sex offender. A court has the discretion to downwardly depart from the presumptiverisk level when the defendant satisfies a twofold threshold showing: "(1) identifying, as amatter of law, an appropriate mitigating factor, namely, a factor which tends to establisha lower likelihood of reoffense or danger to the community and is of a kind, or to adegree, 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 Wyatt, 89 AD3d112, 128 [2011]; seePeople v October, 101 AD3d 975, 975-976 [2012]). In determining whether toexercise that discretion, the court must examine "all circumstances relevant to theoffender's risk of reoffense and danger to the community" (People v Wyatt, 89AD3d at 128).
As specifically relevant to this case, the SORA Guidelines provide that "[a] courtmay choose to downwardly depart from the risk assessment 'in an appropriate case and inthose instances where (i) the victim's lack of consent is due only to inability to consent byvirtue of age and (ii) scoring 25 points [for sexual contact with the victim, risk factor 2]results in an over-assessment of the offender's risk to public safety' " (People v Fryer, 101 AD3d835, 836 [2012], quoting Sex Offender Registration Act: Risk AssessmentGuidelines and Commentary at 9; see People v Goossens, 75 AD3d 1171, 1172 [2010]). Theevidence in this case proves the existence of the facts supporting this ground fordeparture.
It is true, as our dissenting colleague points out, that there was an 11-year differencein age between the defendant and the victim, and that the victim became pregnant as aresult of the defendant's crime. We share our colleague's concern about these facts andabout the significance of the age differential (see People v Fryer, 101 AD3d at836). Nevertheless, the purposes of the SORA Guidelines are to assess the risk that a sexoffender will reoffend and the offender's threat to public safety (see CorrectionLaw § 168-l [5]). There is no evidence here that the defendant committed his crimewith the intention that the victim become pregnant, so the fact that a pregnancy did resultis irrelevant to the SORA risk level determination.
Moreover, the evidence at the hearing demonstrated that the defendant pays childsupport to the victim. While, as our dissenting colleague points out, payment of childsupport is a legal obligation, it was undisputed at the hearing that the defendant not onlypays child support, but that he also regularly travels a significant distance to visit thechild. These facts establish that the defendant truly has taken responsibility for theconsequences of his crime, and not just with respect to his legal obligation. Thatcircumstance, combined with the fact that the victim's lack of consent was due only toinability to consent by virtue of age, convinces us that the assessment of 25 points underrisk factor 2 results in an over assessment of the defendant's risk to public safety (see People v Tineo-Morales,101 AD3d 839, 840 [2012]; People v Weatherley, 41 AD3d 1238, 1239 [2007]; cf.People v Fryer, 101 AD3d at 836). Accordingly, a downward departure isappropriate, and the defendant is reclassified as a level one sex offender. Balkin,Chambers and Cohen, JJ., concur.
Dillon, J.P., dissents and votes to affirm the order, with the following memorandum:
I respectfully dissent from the majority's determination to reverse the order datedOctober 14, 2011, based upon its conclusion that the Supreme Court should havedeparted from the presumptive risk level and designated the defendant a level one sexoffender pursuant to Correction Law article 6-C.
In a proceeding pursuant to New York's Sex Offender Registration Act (hereinafterSORA), a court is vested with discretion to downwardly depart from the presumptive risklevel only after a defendant makes a two-fold showing (see People v Benjamin, 105AD3d 926, 927 [2013]). First, the defendant must identify, as a matter of law, theexistence of an appropriate mitigating factor, "namely, a factor which tends to establish alower 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 [*3]the Guidelines" (People v Wyatt, 89 AD3d 112, 128 [2011]; see People v Romero, 113AD3d 605 [2014]). Second, the defendant must establish by a preponderance of theevidence the facts necessary to support the asserted mitigating factor (see People vBenjamin, 105 AD3d at 927; People v Washington, 105 AD3d 724, 725 [2013]). In theabsence of such a two-fold showing, the SORA court lacks discretion to downwardlydepart from the presumptive risk level (see People v Martin, 90 AD3d 728 [2011]).
Here, the defendant has identified the existence of an appropriate mitigating factor,as that factor is "expressly set forth in the Guidelines with regard to risk factor 2 (sexualintercourse)" (People v Wyatt, 89 AD3d at 129). Specifically, "Factor 2: SexualContact with Victim" provides, in relevant part, that "a court may choose to departdownward in an appropriate case and in those instances where (i) the victim's lack ofconsent is due only to inability to consent by virtue of age and (ii) scoring 25 points inthis category results in an over-assessment of the offender's risk to public safety" (SexOffender Registration Act: Risk Assessment Guidelines and Commentary at 9).
While the defendant has shown that the victim's lack of consent was due only to herinability to consent by virtue of her age, I disagree with the majority that the defendanthas established by a preponderance of the evidence the facts necessary to support themitigating factor. Although the victim admitted that the defendant had not forced her toengage in sexual intercourse, the defendant failed to demonstrate that the scoring of 25points under risk factor 2 resulted in an over-assessment of his risk to public safety (see People v Roldan, 111AD3d 909 [2013], lv denied 22 NY3d 862 [2014]). Indeed, the fact that thedefendant was 11 years older than the victim constitutes a significant and troubling agedisparity (cf. People vModica, 80 AD3d 590 [2011]). This age differential, combined with the factthat the sexual encounter resulted in a pregnancy, adds to the serious nature of thismatter. Moreover, after the defendant was released on probation, after having served aterm of imprisonment upon being convicted of a felony sex offense arising out of theseactions, he subsequently pleaded guilty to violating probation. This pattern ofirresponsible and unlawful behavior manifests the defendant's propensity to place hisown interests ahead of the interests of society. Finally, the fact that the defendant, afterultimately acknowledging paternity, now apparently pays child support, should not behailed as a mitigating factor, since the payment of child support is a parent's legalobligation (see Family Ct Act § 413).
Under the totality of the circumstances, it cannot be said that the scoring of 25 pointsunder risk factor 2 was an over-assessment of the defendant's risk to public safety. Sincethe defendant failed to establish the facts necessary to support the mitigating factor, theSupreme Court had no discretion to depart from the presumptive risk level (see People v Violate, 112AD3d 899 [2013]; People vHenry, 106 AD3d 796 [2013]).
In any event, even if the defendant had succeeded in making the requisite two-foldshowing necessary to invoke the Supreme Court's discretion, in my view, the courtprovidently exercised its discretion in rejecting the defendant's application for adownward departure (seePeople v Worrell, 113 AD3d 742 [2014]; People v Martinez-Guzman, 109 AD3d 462 [2013]).Accordingly, the defendant was properly designated a level two sex offender.