People v. Lopez (Ommar)

People v Lopez (2021 NY Slip Op 50300(U)) [*1] People v Lopez (Ommar) 2021 NY Slip Op 50300(U) [71 Misc 3d 130(A)] Decided on April 9, 2021 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on April 9, 2021 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, DAVID ELLIOT, JJ 2019-868 Q C The People of the State of New York, Respondent, against Ommar Benitez Lopez, Appellant. New York City Legal Aid Society (Svetlana M. Kornfeind of counsel), for appellant. Queens County District Attorney (Johnnette Traill and William H. Branigan of counsel), for respondent. Appeal from an order of the Criminal Court of the City of New York, Queens County (Suzanne J. Melendez, J.), entered March 29, 2019. The order, after a hearing, designated defendant a level two sex offender pursuant to Correction Law article 6-C. ORDERED that the order is affirmed, without costs. Defendant appeals from an order designating him, after a hearing, a level two sex offender pursuant to the Sex Offender Registration Act (SORA) (Correction Law § 168 et seq.), contending that the Criminal Court should have granted his application for a downward departure from his presumptive risk level. Although, in rendering its order, the Criminal Court did not set forth in writing its "findings of fact and conclusions of law on which [its] determinations [were] based" (Correction Law § 168-n [3]), remittal is not required, as the record is sufficient for this court on appeal to make its own findings of fact and conclusions of law (see People v Finizio, 100 AD3d 977 [2012]; People v Harris, 93 AD3d 704 [2012]). A defendant seeking a downward departure from a presumptive risk level must identify mitigating circumstances that are of a kind, or to a degree, not adequately taken into account by the SORA Guidelines (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] [SORA Guidelines]), and must prove the existence of those circumstances by a preponderance of the evidence (see People v Gillotti, 23 NY3d 841, 861-864 [*2][2014]). "The Board [of Examiners of Sex Offenders] or a court may choose to depart downward in an appropriate case and in those instances where (i) the victim's lack of consent is due only to inability to consent by virtue of age and (ii) scoring 25 points in this category results in an over-assessment of the offender's risk to public safety" (SORA Guidelines at 9; see People v Anderson, 137 AD3d 988, 988 [2016]). A downward departure is not warranted here given defendant's failure to meet his initial burden of identifying mitigating circumstances that are of a kind, or to a degree, not adequately taken into account by the SORA Guidelines. The mitigating circumstances identified by defendant, that there was only one victim, the inability of the victim to consent due to her age and that this was his only sexual offense, are adequately taken into account by the Guidelines under risk factors three (number of victims), five (age of victim) and nine (number and nature of prior crimes), and, thus, do not warrant a departure from the presumptive risk level under the circumstances (see People v Garner, 163 AD3d 1009, 1010 [2018]). Moreover, a downward departure is not warranted based on the totality of the circumstances surrounding the incident, including, but not limited to, the age disparity between the then 42-year-old defendant and the then 15-year-old victim (see People v Garner, 163 AD3d 1009; People v Quirindongo, 153 AD3d 863 [2017]; People v Fryer, 101 AD3d 835, 836 [2012]). We find defendant's remaining contention, that the Criminal Court applied the wrong standard of proof in denying his application for a downward departure, to be without merit. Accordingly, the order designating defendant a level two sex offender is affirmed. ALIOTTA, P.J., WESTON and ELLIOT, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: April 9, 2021