People v. Macedonio

Summary

The Appellate Division, Second Department affirmed two orders designating Carl A. Macedonio a level three sex offender under the Sex Offender Registration Act. The court held that several asserted mitigating factors were already accounted for or insufficiently proven, and that although his advanced age and debilitating illnesses constituted a mitigating factor, the totality of the circumstances, including the extreme violence of his crimes, supported the level three designation.

Holdings

1. A defendant seeking a downward departure must first identify an appropriate mitigating factor that tends to establish a lower likelihood of reoffense or danger to the community and is not otherwise accounted for by the Guidelines, and must prove the facts supporting that factor by a preponderance of the evidence. If that showing is made, the court must exercise discretion by weighing the factor against the totality of the circumstances.
2. Acceptance of responsibility and remorse, as well as the defendant's prison disciplinary record, do not properly serve as mitigating factors when those matters are already accounted for by SORA risk factors 12 and 13.
3. A defendant's score on an alternate risk-assessment instrument, standing alone, does not constitute a mitigating factor justifying a downward departure from the presumptive risk level.
4. Although rehabilitation based on the totality of the record may constitute a mitigating factor not accounted for by the Guidelines, the defendant failed to prove the facts supporting rehabilitation by a preponderance of the evidence.
5. The defendant's advanced age and debilitating illnesses constituted a mitigating factor, but the totality of the circumstances, including the extreme violence of his crimes and the murder of one victim, did not warrant a downward departure; the level three designation best assessed his risk and the threat to the public.

Questions Presented

1. Whether the defendant established mitigating factors not otherwise accounted for by the SORA Guidelines that warranted a downward departure from his presumptive level three risk designation.
2. Whether the defendant's acceptance of responsibility, remorse, prison disciplinary record, alternate risk-assessment score, rehabilitation, advanced age, and debilitating illnesses justified a downward departure.
3. Whether the totality of the circumstances, including the extreme violence of the offenses, supported retaining the level three designation despite the defendant's physical condition.

Disposition

affirmed