This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 65
The People &c.,
            Respondent,
        v.
Quanaparker Howard,
            Appellant.




          Kathryn Friedman, for appellant.
          Nicholas T. Texido, for respondent.




DIFIORE, Chief Judge:
          In People v Knox (12 NY3d 60, 69, cert denied 558 US
1011 [2009]), we held that "the Legislature c[an]
constitutionally provide that all those convicted of kidnapping
or unlawfully imprisoning children not their own, or of

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                               - 2 -                          No. 65

attempting to commit those crimes, be conclusively deemed sex
offenders" -- subject to the Sex Offender Registration Act (SORA)
-- even where there "was neither a sexual assault nor any
discernible risk of one" associated with the SORA-qualifying
offense.
           Defendant does not dispute that he is a "sex offender"
as defined by SORA.   Rather, he protests his adjudication as a
risk level three sex offender by the SORA hearing court following
convictions for the assault and the unlawful imprisonment of his
then-girlfriend's eight-year-old son during which he caused
serious physical injury to the child with a dangerous instrument.
Specifically, the issue on appeal is whether the SORA hearing
court abused its discretion in adjudicating defendant a risk
level three where the unlawful imprisonment conviction, the
qualifying crime for SORA, did not involve a sexual component.
We find no abuse of discretion on this record.
                                I.
           By all accounts, the facts are egregious.   Defendant,
along with his codefendant, tied codefendant's eight-year-old son
up, naked, in a standing position and repeatedly beat him with
dangerous instruments for a period of approximately five days.
The child, bruised and battered, was discovered by police in an
"upper bedroom naked with his arms tied to the closet and bed
post, a sock stuck into his mouth, a pillowcase tied over his
head, [and] socks tied on his wrists and his feet with electrical


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cord."   As a result of this ordeal, the child suffered a
collapsed lung, bruised intestines, a lacerated liver and pooled
blood in the abdomen.    Defendant was convicted of first-degree
unlawful imprisonment (Penal Law § 135.10), two counts of first-
degree assault (id. § 120.10 [1]), and one count each of second
degree assault (id. § 120.05 [8]) and endangering the welfare of
a child (id. § 260.10 [1]).
            As a nonparent convicted of unlawful imprisonment of a
victim less than 17 years of age, defendant was required to
register as a sex offender pursuant to SORA (Correction Law § 168
et seq.).   In preparation for defendant's release, the Board of
Examiners of Sex Offenders (the Board) prepared a Risk Assessment
Instrument (RAI) that assessed defendant a risk factor score of
55 points, warranting a level one classification.1    The Board had
assessed 0 points for risk factor 2, "Sexual Contact with
Victim."    The Board noted, however, that under the Guidelines, an
override to level three was applicable because defendant
inflicted serious physical injury to his victim.     The Board
further noted that no departure from that presumptive risk level
was warranted.
            At defendant's SORA hearing -- at which defendant


     1
       A score between 0 and 70 results in a presumptive risk
level one classification, while a score between 70 and 110 points
results in a presumptive risk level two classification, and a
score greater than 110 points results in a presumptive risk level
three classification (SORA: Risk Assessment Guidelines and
Commentary at 3 [2006] [hereinafter Guidelines]).

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waived his right to appear -- defense counsel argued that a level
one classification was appropriate, stating that "the defendant's
scored at a Level 55.   It does not appear that any of the
accusations of which [defendant] was accused were of a sexual
nature and, therefore, we would not dispute the score of 55 and
ask that there be no departure."
          The People, on reviewing the RAI, requested that for
risk factor 1, "Use of Violence" in the current offense, the
court assess defendant 30 points, as opposed to the 15 points
assessed for "[i]nflicted physical injury," because defendant was
"armed with a dangerous instrument."    This additional 15 points
brought the total risk factor score to 70 points, still a
presumptive risk level one.   The People also agreed with the
Board's application of the presumptive override to risk level
three on the basis that the offender inflicted serious physical
injury.
          Defense counsel responded, arguing that "this is a sex,
S-E-X, offender registration.   And because [defendant's] crime
does not appear to have any of those connotations and allegations
I think that a Level 1 is appropriate."
          County Court adjudicated defendant a level three sex
offender, finding defendant's total risk factor score was 70 --
constituting a risk level one -- but employing the override to a
presumptive risk level three for infliction of serious physical
injury.   The court "agree[d] with the Board's recommendation and


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the People's on the [p]resumptive [l]evel [three]."   The court
declined to depart from that presumptive level, highlighting "the
extensive serious injury inflicted upon the victim" which
included "torture inflicted" and finding that defendant "pose[d]
a serious risk to public safety that [wa]s not captured by the
scoring instrument."
           The Appellate Division unanimously affirmed for the
reasons stated by County Court (125 AD3d 1331 [4th Dept 2015]).
This Court granted leave to appeal (25 NY3d 906 [2015]), and we
now affirm.
                                II.
           At a SORA hearing, the People must prove the facts to
support a SORA risk-level classification by clear and convincing
evidence (Correction Law § 168-n [3]).   Here, defendant
ultimately scored a total of 70 points on the RAI, warranting
classification as a level one sex offender, and that score is not
at issue in this appeal.   However, the RAI also provides for four
automatic overrides, the application of which will result in a
presumptive risk assessment of level three (see Guidelines at 3-
4).   Relevant to this appeal, one of these overrides is for the
"infliction of serious physical injury or the causing of death"
(id. at 3).   There is no dispute that defendant was convicted of
the crime of first-degree assault, wherein he caused serious
physical injury to the victim by the use of a dangerous
instrument, (see Penal Law § 120.10 [1]), and, therefore, the


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override was properly applied.
          Nevertheless, the hearing court has the discretion to
depart from a presumptive level (see Knox, 12 NY3d at 70).    We
have held that such departures are "the exception, not the rule"
(People v Johnson, 11 NY3d 416, 421 [2008]).   In determining
whether to depart from a presumptive risk level, the hearing
court weighs the aggravating or mitigating factors alleged by the
departure-requesting party to assess whether, under the totality
of the circumstances, a departure is warranted (People v
Gillotti, 23 NY3d 841, 861 [2014]).2
          In People v Cintron, decided in tandem with Knox, we
addressed the question of whether "the courts below abused their
discretion in not departing from the guideline level [three],
since the crimes that gave rise to the adjudication did not
involve sex" (12 NY3d at 70).    We answered that question in the
negative, citing defendant Cintron's "long record of violent
conduct, including sexual violence" (id.).
          In the present appeal, defendant's argument that the
SORA court erred in adjudicating him a level three sex offender
is essentially twofold.   Defendant argues (1) that SORA is
unconstitutional as applied to him and (2) that the SORA court
abused its discretion in "engaging in an upward departure" from a
risk level one to three because defendant's crime did not involve


     2
       Notably, Gillotti was decided after defendant's SORA
hearing in this matter.

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a sexual component.
                                III.
           Defendant's constitutional argument is unpreserved for
this Court's review (see People v Windham, 10 NY3d 801, 802
[2008]).
           As to defendant's remaining argument, defendant
characterizes his level three adjudication as an "upward
departure" from the presumptive risk level one warranted by the
70 points he was assessed.    However, the application of the
override for "infliction of serious physical injury,"
"automatically result[s] in a presumptive risk assessment of
level [three]" (Guidelines at 3).      Therefore, properly framed,
defendant's argument is that the SORA court abused its discretion
in declining to engage in a downward departure from the
presumptive risk level three.    We disagree.
           Defendant's sole argument to the SORA court was that
the absence of a sexual component to his crime, in and of itself,
warranted a level one adjudication.      That factor, the existence
of which was not in dispute, was considered in defendant's RAI
wherein the Board assessed him 0 points for risk factor 2 --
Sexual Contact with Victim.    Defendant made no other argument of
a mitigating factor to the SORA court in support of a downward
departure.   In the exercise of its discretion, the SORA court
declined to depart from the presumptive risk level three.
           At the SORA hearing, defendant was represented by


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counsel and afforded an opportunity to present any other
mitigating factors.   There is nothing in the record to suggest
that the hearing court felt it did not possess the discretion to
depart from the presumptive level three, nor to suggest that the
hearing court did not exercise that discretion (cf. People v
Reynolds, 68 AD3d 955, 955-56 [2d Dept 2009]).    In fact, the
court found that such a downward departure was not "warranted by
the evidence," making the finding that based on "the torture
inflicted" defendant "poses a serious risk to public safety that
is not captured by the scoring instrument."
          On appeal, defendant attempts to distinguish his case
from that of People v Cintron because he has no past criminal
history of sexual offenses.    However, absence of past sexual
offenses alone does not compel a conclusion that the hearing
court abused its discretion.    Defendant was assessed no points
for criminal history on his RAI and he made no argument before
the SORA court that his past criminal history was not properly
considered as a mitigating factor.3


     3
       The dissent focuses on the standard by which County Court
assessed the quantum of proof supporting the existence of the
alleged mitigating factors -- that there was no sexual component
to his offense and that defendant's criminal history did not
include any sex crime or sexual violence. However, there was no
factual dispute as to the existence of those factors, and the RAI
reflected that "0" points were assessed for both. Therefore,
County Court had every reason to find the existence of the
factors was established by defendant. The issue here is whether
County Court properly exercised its discretion "to determine
whether the totality of the circumstances warrant[ed] a
departure" (Gillotti, 23 NY3d at 861). We also decline to

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          Defendant's argument asks this Court to have tunnel
vision with respect to other aspects of his underlying offense,
which included imprisoning a naked eight-year-old victim for five
days in a bedroom and torturing him and causing serious physical
injury.
          Under these circumstances, it was not an abuse of
discretion for the SORA court to decline to depart from the
presumptive risk level three.
          Accordingly, the order of the Appellate Division should
be affirmed, without costs.




presume that, in affirming County Court's order, the Appellate
Division did not properly apply the law, particularly since the
decision was rendered after this Court's decision in Gillotti (23
NY3d 841).

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People v Quanaparker Howard
No. 65




RIVERA, J.(dissenting):
     Defendant was not convicted of a sex offense, but because he
was found guilty of first-degree unlawful imprisonment of his
codefendant's eight-year-old child, defendant was statutorily
classified as a sex offender, and thus subject to the Sex
Offender Registration Act (SORA) (Correction Law §§ 168-a [1],
[2] [a] [i]).   In accordance with SORA, County Court assigned
defendant what it considered an appropriate risk level, which, in
turn, determined how much of defendant's personal information
would be made public and the duration of his registration after
his release from prison.   However, County Court committed a
fundamental error when it applied the clear and convincing
evidence standard in determining whether a downward departure
from the assigned level was warranted in defendant's case.     The
proper legal standard, and one consistent with SORA's legislative
intent "to carefully guard a defendant's liberty interest," is
the less onerous preponderance of the evidence standard (People v
Gillotti, 23 NY3d 841, 864 [2014]).
     Since the record before us fails to establish that County
Court properly determined the existence and weight to be afforded
defendant's mitigating factors, the matter should be reversed and


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remitted for reconsideration.   I therefore dissent from the
majority's decision to let stand a judicial determination based
on a standard rejected by this Court, without proper
consideration of the merits of defendant's arguments, and which
imposes on defendant a lifetime registration requirement with its
attendant adverse consequences.
     The scope and duration of SORA registration is determined by
a court after consideration of recommendations from the People
and the Board of Examiners for Sex Offenders (Board).   Under
SORA, the assigned notification level depends "upon the degree of
the risk of re-offense by the sex offender" (Correction Law §
168-l [6]).   The Board makes its "risk level" assessment based on
a numerical score derived from an aggregation of points assigned
to various factors identified in a Risk Assessment Instrument
(RAI), created and utilized by the Board (SORA, Risk Assessment
Guidelines: Commentary at 3 [2006]).    According to the SORA Risk
Assessment Guidelines and Commentary (Guidelines) promulgated by
the Board, a total score of 70 points results in a level one, low
risk designation; over 70 but less than 110 points is assigned a
level two, moderate risk designation; and 110 or more points
results in a level three, high risk designation (id. at 1, 3).
     The Guidelines also impose four automatic overrides
resulting in a presumptive risk level three, regardless of the
RAI point score (id. at 3-4).   However, the overrides are not
mandatory, and a court may depart from the override when


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warranted (id. at 4 ["The risk level calculated from aggregating
the risk factors and from applying the overrides is 'presumptive'
because the Board or court may depart from it if special
circumstances warrant."]; see also People v Pettigrew, 14 NY3d
406, 409 [2010] ["The risk level suggested by the RAI, however,
is merely presumptive, and the assigning of a risk level is
within the sound discretion of the SORA court."]; People v Mingo,
12 NY3d 563, 568 n 2 [2009]).   A departure from the presumptive
risk level
          "is premised on a recognition that an
          objective instrument, no matter how well
          designed, will not fully capture the nuances
          of every case. Not to allow for departures
          would, therefore deprive the Board or a court
          of the ability to exercise sound judgment and
          to apply its expertise to the offender"
(Guidelines at 4).   A court may depart if it concludes "there
exists an aggravating or mitigating factor of a kind, or to a
degree, that is otherwise not adequately taken into account by
the guidelines" (id.; Gillotti, 23 NY3d at 861).
     This Court held in People v Gillotti that a defendant must
establish by a preponderance of the evidence the existence of
mitigating circumstances supporting a downward departure from the
presumptive risk level (23 NY3d at 861).   If such circumstances
exist, "the court must exercise its discretion by weighing the
aggravating and mitigating factors to determine whether the
totality of the circumstances warrants a departure to avoid an
over- or under-assessment of the defendant's dangerousness and


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risk of sexual recidivism" (id.).
       As relevant here, the Board's RAI assigned defendant 55
points and the People recommended additional points bringing the
score to 70.    Both scores presumptively placed defendant at level
one.    However, the Board and the People recommended that
defendant be designated a level three risk based on a presumptive
override for having inflicted serious physical injury to the
child victim of his underlying crime.    The People argued that a
level three designation was appropriate given concerns for
community safety because of defendant's indifference to the life
of a child.    Both relied on record evidence that defendant and
co-defendant, his friend and the child's mother, tied up and
subjected the child, while naked, to physical abuse over the
course of five days.    Defendant beat the child with a belt and a
plastic bat.    The child was subsequently treated for a collapsed
lung, lacerated liver and intestines, and pooled blood in the
abdomen.    County Court concluded that the People established by
clear and convincing evidence facts in support of the presumptive
override, and that a downward departure was not warranted by the
evidence.    The Fourth Department summarily affirmed for reasons
stated in the decision by County Court.
       Based on the level three designation, among other
requirements, defendant must register with the Division of
Criminal Services and his name, any aliases, date of birth, race,
sex, height, weight, eye color, home address, driver's license


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number, a description of his offense, date of conviction,
sentence, and a photograph, updated annually, will be published
online for the rest of defendant's life (Correction Law §§ 168-b
[l] [a],-b [l] [b],-b [l] [c],-h [2]).    Defendant must further
appear before the local law enforcement agency with jurisdiction
every 90 days to verify his address (Correction Law § 168-h [3]).
     At the SORA hearing and on appeal, defendant has
consistently argued that his level three designation based on the
presumptive override is unwarranted because his underlying
conviction does not involve a sex crime.    Defendant contends that
a level one designation is appropriate.    Defendant's argument is
supported, in part, by the case summary prepared by the Board, in
which it concluded that defendant had no prior criminal history
and the underlying crime "was not sexually driven."
     These circumstances should have been considered as possible
mitigating factors supporting a departure from the presumptive
level three override in accordance with this Court's reasoning in
People v Knox and its companion case, People v Cintron (12 NY3d
60 [2009]).   In Knox, this Court considered a constitutional
challenge to SORA by persons, like defendant, who were designated
as "sex offenders" for SORA registration purposes even though
their underlying crimes did not involve sexual acts or motives.
Applying the most deferential constitutional test, the Court
determined that the State Legislature had a rational basis for
concluding that in the large majority of cases involving


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kidnapping or unlawful imprisonment of children by nonparents,
the children are either sexually assaulted or in danger of sexual
assault (id. at 68-69).    Therefore, the Legislature could
rationally provide that "as a general rule, people guilty of such
crimes should be classified as 'sex offenders'" (id. at 69).
However, the Court recognized that as applied to the minority of
defendants whose cases do not involve "a sexual assault nor any
discernible risk of one," even if constitutional, "the term is
unmerited" (id.).
     In Cintron, the Court further considered whether a nonparent
defendant classified as a sex offender based on his conviction
for unlawful imprisonment of two child victims could be lawfully
designated a risk level three (id. at 70).    Defendant Cintron
asserted that the courts abused their discretion in failing to
depart from the Guideline level because his underlying crime did
not involve sex (id.).    The Court rejected this argument, not
because this factor was irrelevant, but because the defendant's
history included conduct that justified the sex reoffender risk
level.   The Court concluded that given the defendant's "long
record of violent conduct, including sexual violence," and a
serious Tier III Sex Offense committed during incarceration, the
Court could not say that the lower courts abused their discretion
in determining that Cintron was a high risk to "commit a sex
crime in the future" (id.).
     As the analyses in these cases illustrate, the fact that an


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offender's criminal history does not include any sex crime or
sexual violence is a relevant factor in assessing whether
classification as a sex offender merits a level three risk
designation.1   However, here, County Court failed to apply the
proper standard in determining whether a downward departure from
the presumptive level three designation was warranted based on
defendant's proposed mitigating factors.   The court referenced
only the clear and convincing standard in analyzing defendant's
risk level, made no distinction between the People's burden and
the proof necessary to justify a downward departure from the
presumptive override, and failed to discuss how, if at all, it
weighed defendant's apparent absence of a criminal history.
Thus, there is no support for the majority's assumption that
County Court agreed with defendant that mitigating factors
existed, and then, based on the totality of the circumstances,
found those factors insufficient to warrant a departure (maj op
at 3).   In fact, County Court made no mention of defendant's
argument that because the underlying crime was not a sex crime he



     1
      The majority's statement that defendant's RAI already
accounts for the fact that his underlying crime does not involve
sex is a distraction from the issue on appeal (maj op at 7). The
Guidelines are explicit that the inquiry is whether "there exists
an aggravating or mitigating factor of a kind, or to a degree,
that is otherwise not adequately taken into account by the
guidelines" (id. [emphasis added]; Gillotti, 23 NY3d at 861).
Therefore, even where the factor in question is explicitly
considered in the calculation of an offender's RAI score, if the
court concludes it is "not adequately taken into account," a
court may consider it further in determining whether to depart.

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should be classified as a level one offender.   County Court may
have agreed that mitigating factors existed, or it may have
rejected defendant's argument.    On this record, there is no way
to know.
     County Court's silence is especially noteworthy given that
the sexually violent history this Court singularly relied on in
upholding the level three designation in Cintron is lacking from
defendant's case.   Additionally, whereas Cintron's level three
risk assessment was based on his RAI score, defendant's RAI
placed him at a level one, low risk to reoffend, and his level
three designation is a consequence of the application of the only
guideline override that does not include an element involving a
sexual act or motivation.   These circumstances could have tipped
in favor of a judicial determination that a level three
designation is an "over- . . . []assessment of the defendant's
dangerousness and risk of sexual recidivism" (Gillotti, 23 NY3d
at 861, citing Knox, 12 NY3d at 70; People v Johnson, 11 NY3d
416, 421 [2008]), and that he did not pose "a high risk [to]
commit a sex crime in the future" (Knox, 12 NY3d at 70).2


     2
      While I might agree with the majority that we can presume
the Appellate Division correctly applied the law because it
rendered its opinion after this Court decided Gillotti, that
presumption is at odds with the Appellate Division's summary
opinion here. The Appellate Division affirmed "for reasons
stated" by County Court, and without at least a citation to
Gillotti there is no reason to presume that the court applied the
proper standard. In any event, the Appellate Division opinion
sheds no light on how defendant's mitigation factors were
considered below.

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     In light of the unsupportable assumptions necessary to
uphold the decision below, I would remand and remit for the court
to consider, under the preponderance of the evidence standard,
whether the nature of defendant's crime and the absence of a
history of sexual violence are mitigating factors within the
meaning of SORA, the Guidelines, and this Court's precedent
warranting a departure from the level three presumptive override.
I cannot agree with the majority that there was no error below
and therefore, I dissent.
*   *   *   *   *     *   *   *    *      *   *   *   *   *   *   *   *
Order affirmed, without costs. Opinion by Chief Judge DiFiore.
Judges Pigott, Abdus-Salaam, Stein, Fahey and Garcia concur.
Judge Rivera dissents in an opinion.

Decided May 3, 2016




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