People v. Dudley
Opinion
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Bureau Thomas J.K. Smith, State Reporter
People v Dudley
2026 NY Slip Op 04522
July 22, 2026
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This decision is uncorrected and subject to revision before publication in the Official Reports.
The People of the State of New York, respondent,
v
Ronald Dudley, appellant.
Supreme Court of the State of New York, Appellate Division, Second Judicial Department
Decided on July 22, 2026
2020-08267
Colleen D. Duffy, J.P.
Janice A. Taylor
Lourdes M. Ventura
Elena Goldberg Velazquez, JJ.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Nancy Fitzpatrick Talcott of counsel; Sarah Walter on the brief), for respondent.
Twyla Carter, New York, NY (Whitney Elliott of counsel), for appellant.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Queens County (Karen Gopee, J.), dated August 27, 2020, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.
ORDERED that the order is affirmed, without costs or disbursements.
The defendant was convicted, upon his plea of guilty, of attempted sexual abuse in the first degree. After a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6—C), the Supreme Court assessed the defendant 100 points on the risk assessment instrument. The court also applied an automatic override based on the defendant's prior felony conviction of a sex crime, resulting in a presumptive designation as a level three sex offender. The court denied the defendant's application for a downward departure from the presumptive risk level and designated him a level three sex offender. The defendant appeals.
The defendant's prior conviction for a felony sex crime warranted a presumptive level three sex offender determination pursuant to an automatic override (see People v McGuire, 244 AD3d 1261, 1262; People v Berry, 138 AD3d 945, 946).
A court may depart from the presumptive risk level obtained pursuant to the automatic override where the circumstances warrant a departure, "although such departures are the exception, and not the rule" (People v Simmons, 170 AD3d 904, 904; see People v Johnson, 135 AD3d 720, 721). A defendant seeking a downward departure from the presumptive risk level has the initial burden of "(1) identifying, as a matter of law, an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence" (People v Wyatt, 89 AD3d 112, 128; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter Guidelines]; People v Gillotti, 23 NY3d 841, 861). "If the defendant makes that twofold showing, the court must exercise its discretion by weighing the mitigating factor to determine whether the totality of the circumstances warrants a departure to avoid an overassessment of the defendant's dangerousness and risk of sexual recidivism" (People v Khan, 182 AD3d 613, 614; see People v Gillotti, 23 NY3d at 861).
Here, the Supreme Court properly denied the defendant's application for a downward departure. While an offender's response to treatment may qualify as a ground for a downward departure where the response is "exceptional" (Guidelines at 17; see People v Ralph, 170 AD3d 900, 901-902), the defendant failed to establish the facts in support of that ground by a preponderance of the evidence (see People v Coleman, 225 AD3d 792, 794). In addition, the defendant's criminal history was adequately taken into account by the Guidelines (see People v Gonzalez, 238 AD3d 914, 915).
The defendant also cited family support as a mitigating circumstance. However, the defendant failed to demonstrate that his family support established a lower likelihood of reoffense or danger to the community (see People v Green, ___ NY3d ___, ___, 2026 NY Slip Op 03378, *1, *4; People v Saintilus, 169 AD3d 838, 839).
In light of our determination that an override was established, we need not reach the defendant's challenge to the assessment of points under risk factor 2 (see People v McGuire, 244 AD3d at 1262-1263).
Accordingly, the Supreme Court properly designated the defendant a level three sex offender.
DUFFY, J.P., TAYLOR, VENTURA and GOLDBERG VELAZQUEZ, JJ., concur.
ENTER:
Darrell M. Joseph
Clerk of the Court
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