| People v Gordon |
| 2015 NY Slip Op 08720 [133 AD3d 835] |
| November 25, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Tameeka Gordon, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Leila Hull of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, MorganJ. Dennehy, and Daniel Berman of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County(Brennan, J.), dated December 17, 2014, which, after a hearing, designated her a levelthree sex offender pursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
In 1997, the defendant was convicted of kidnapping in the first degree, among othercrimes. The victim was less than 17 years of age and the defendant was not her parent.Accordingly, it is undisputed that the defendant's crime is a "sex offense" under NewYork's Sex Offender Registration Act (hereinafter SORA) (Correction Law§ 168-a [2] [a] [i]), regardless of whether there was any sex-related conductor motive during the crime (seePeople v Knox, 12 NY3d 60, 65 [2009]). In 2014, before the defendant wasreleased from prison, the Supreme Court conducted a proceeding to determine her SORArisk level. The scoring on the risk assessment instrument, as determined at the hearing,totaled 85 points, which would have rendered the defendant, presumptively, a level twosex offender (see Sex Offender Registration Act: Risk Assessment Guidelinesand Commentary at 4 [2006]). However, it was undisputed that the victim sufferedserious physical injury as a result of the defendant's crime. Accordingly, the defendant'spresumptive risk level was not determined by the totaling of points, but by theapplication of an override. Under the SORA Guidelines and Commentary, the presenceof any of four override circumstances, one of which is that the victim suffered seriousphysical injury, automatically renders the defendant, presumptively, a level three sexoffender (see id.). Contrary to the defendant's contention, a SORA court is notpossessed of any discretion in determining whether to apply the override; the applicationof the override is automatic (see id.). Here, upon determining at the SORAhearing that the victim suffered serious physical injury, the Supreme Court correctlydetermined that, based on the applicability of the override, the defendant was,presumptively, a level three sex offender.
A SORA court has discretion to depart from an offender's presumptive risk levelonly if the party seeking a departure makes a two-fold showing. Regardless of whetherthe presumptive risk level has been determined by the assessment of points or theapplication of an override (see Sex Offender Registration Act: Risk AssessmentGuidelines and Commentary at risk factor 9 [3]; at 4 [2006]; see also People v Rodriguez,127 AD3d 715, 715 [2015]; People v Goods, 121 AD3d 660, 660 [2014]; People v Reynolds, 90 AD3d630, 631 [2011]), a defendant who seeks a downward departure must first identify amitigating circumstance or circumstances "of a kind or to a degree not adequately takeninto account by the guidelines" (People v Gillotti, 23 NY3d 841, 861 [2014], citing Sex[*2]Offender Registration Act: Risk AssessmentGuidelines and Commentary at 4 [2006]; see People v Torres, 124 AD3d 744, 745 [2015]). Thedefendant then has the burden of proving by a preponderance of the evidence theexistence of those circumstances in his or her case (see People v Gillotti, 23NY3d at 861, 864; People v Torres, 124 AD3d at 745). Only upon thedefendant's satisfaction of that two-fold showing does the court become vested withdiscretion to depart from the presumptive risk level (see People v Gillotti, 23NY3d at 861).
Here, the defendant contends that the lack of a sexual component to the crime shecommitted, as well as the unusual circumstances of the crime, her prison record, and hercurrent age, permitted the SORA court to depart from the presumptive risk level, and thatits refusal to depart was an improvident exercise of discretion. Even assuming that thedefendant met her two-fold burden, the court's refusal to depart from the presumptiverisk level was a provident exercise of discretion. In evaluating all the circumstances,including those put forward by the defendant and the extreme violence of the defendant'scrime (see Correction Law § 168-a [2] [a] [i]), and its consequencesto the victim, we agree that the level three designation best assesses the risk of a repeatoffense by the defendant and the threat posed to the public safety (see CorrectionLaw § 168-l [5]).
The defendant's remaining contentions are without merit. Eng, P.J., Balkin, Cohenand Duffy, JJ., concur.