People v. Weber

• Decision Date: 17 June 2021
• Docket Number: KA 20-00738,381
• Parties: The PEOPLE of the State of New York, Respondent, v. Christopher J. WEBER, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

195 A.D.3d 1544

145 N.Y.S.3d 895 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Christopher J. WEBER, Defendant-Appellant.

381

KA 20-00738

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: June 17, 2021

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.

PRESENT: SMITH, J.P., CARNI, LINDLEY, TROUTMAN, AND BANNISTER, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Defendant appeals from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act ([SORA] Correction Law § 168 et seq. ). On a prior appeal, we reversed an order determining that defendant was a level three risk, concluding that County Court erred in assessing points for the use of forcible compulsion ( People v. Weber , 176 A.D.3d 1631, 1631-1632, 107 N.Y.S.3d 921 [4th Dept. 2019] ). Although we vacated the risk level determination, we also remitted the matter to County Court " ‘for further proceedings to determine whether an upward departure from defendant's presumptive risk level [was] warranted’ " ( id. at 1632, 107 N.Y.S.3d 921 ). Defendant now appeals from an order that granted the People's request for an upward departure and again classified him as a level three sex offender.

Contrary to defendant's initial contention, the court did not err in considering the People's request for an upward departure. We remitted the matter for such a determination ( id. ), and it " ‘is well settled that a trial court, upon a remand or remittitur, is without power to do anything except to obey the mandate of the higher court, and render judgment in conformity therewith’ " ( Wiener v. Wiener , 10 A.D.3d 362, 363, 780 N.Y.S.2d 759 [2d Dept. 2004] ; see e.g. People v. Dennis , 148 A.D.3d 927, 928, 49 N.Y.S.3d 520 [2d Dept. 2017] ; People v. Garcia , 145 A.D.3d 1032, 1033, 45 N.Y.S.3d 477 [2d Dept. 2016] ). Moreover, although the People did not request such a departure during the original SORA proceeding, there was no reason for them to do so inasmuch as the court had classified defendant as a level three risk based upon the presumptive risk level yielded by the score on his risk assessment instrument (see People v. Swain , 46 A.D.3d 1157, 1159, 848 N.Y.S.2d 726 [3d Dept. 2007] ; cf. People v. Bryant , 187 A.D.3d 1657, 1659, 131 N.Y.S.3d 481 [4th Dept. 2020] ; see generally People v. Brown , 148 A.D.3d 1705, 1707, 50 N.Y.S.3d 671 [4th Dept. 2017] ).

Contrary to defendant's further contention, the court did not err in granting an upward departure. It is well settled that "[a] court may make an upward departure from a presumptive risk level when, after consideration of the indicated factors[,] ... [the court determines that] there exists an aggravating ... factor of a kind, or to a degree, not otherwise adequately taken into account by the [risk assessment] guidelines" ( People v. Abraham , 39 A.D.3d 1208, 1209, 834 N.Y.S.2d 413 [4th Dept. 2007] [internal quotation marks omitted]; see generally People v. Gillotti , 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ), and the People bear the burden of establishing such a factor by clear and convincing evidence (see People v. Seabolt , 148 A.D.3d 1650, 1650, 50 N.Y.S.3d 724 [4th Dept. 2017] ; see generally Gillotti , 23 N.Y.3d at 861-862, 994 N.Y.S.2d 1, 18 N.E.3d 701 ). Here, the court found that defendant "was unsuccessful on interim probation" inasmuch as he committed unrelated sexual assaults while on probation and was eventually adjudicated a youthful offender after pleading guilty...