Criminal decisions out of the Appellate Division, Second Department

November 27, 2024 Robert Abruzzese, Courthouse Editor

The Brooklyn Supreme Court, Criminal Term, at 320 Jay St. Eagle file photo by Rob Abruzzese

The Brooklyn Supreme Court, Criminal Term at 320 Jay St. Brooklyn Eagle photo by Rob Abruzzese

Mitigating factors fall short in level two sex offender case

The Appellate Division, Second Department, upheld a decision by the Kings County Supreme Court designating Keith Simms as a level two sex offender under the Sex Offender Registration Act (SORA). The ruling, issued on Nov. 20, affirmed that the lower court properly denied Simms’ request for a downward departure from his presumptive risk level.

The court required the defendant to prove by a preponderance of the evidence that a mitigating factor not adequately accounted for in the SORA guidelines established a lower likelihood of reoffense or danger to the community.

Simms argued that mitigating factors, including his response to sex offender treatment and support from family and friends, warranted a lower designation. However, the appellate court found that he failed to prove these factors met the legal standard to justify a reduction.

The court explained that while a positive response to treatment could qualify as a mitigating factor, Simms did not show by a preponderance of the evidence that his progress was “exceptional.” Additionally, the court said that his support system was already considered under the risk assessment guidelines and did not demonstrate a reduced likelihood of reoffense.

~ People of State of New York v. Simms ~

Health claim fails to lower risk level for sex offender

The Appellate Division, Second Department, has upheld a decision by the Kings County Supreme Court designating Michael Rougeou as a level two sex offender under the Sex Offender Registration Act (SORA). The Nov. 20 ruling affirmed that Rougeou failed to provide sufficient evidence for a downward departure from his presumptive risk level.

The court required the defendant to identify a mitigating factor that, as a matter of law, reduces the likelihood of reoffense and is not adequately accounted for in the SORA guidelines. The defendant also had to prove the existence of this factor by a preponderance of the evidence, after which the court weighed it against the totality of circumstances to determine if a downward departure was warranted.

Rougeou, convicted of attempted sexual conduct against his nine-year-old granddaughter, argued that his ill health and lack of prior sex crime convictions should lower his designation. While the court acknowledged his poor health as a potential mitigating factor, it found that his offense, committed while he was on parole for another conviction, outweighed this consideration.

The court also rejected other arguments, noting that remorse and the length of post-release supervision are not valid mitigating factors under SORA guidelines.

~ People of State of New York v. Rougeou ~

Advanced age not enough to reduce sex offender risk level

The Appellate Division, Second Department, upheld a Kings County Supreme Court decision designating Richard Johnson a level two sex offender under the Sex Offender Registration Act (SORA). The Nov. 20 ruling affirmed that Johnson, 61, failed to prove mitigating factors sufficient to justify a downward departure from his presumptive risk level.

The court required the defendant to prove by a preponderance of the evidence that a mitigating factor not adequately considered by the SORA guidelines established a lower likelihood of reoffense or danger to the community. The court then assessed whether the totality of the circumstances justified a downward departure to avoid overestimating the defendant’s risk.

Johnson, convicted in 1995 of multiple sex crimes, including rape and sexual abuse, argued that his advanced age and rehabilitation warranted a lower designation. However, the court found no evidence that his age at the time of release reduced his risk to public safety. It also determined that other factors, such as family support and program participation during incarceration, were either accounted for in the SORA guidelines or insufficient to justify a reduction.

The court held that Johnson did not meet the evidentiary standard to establish mitigating factors that would lower his likelihood of reoffense or danger to the community.

~ People of State of New York v. Johnson ~

Insufficient evidence of intent leads to dismissal in gang assault case

The Appellate Division, Second Department, upheld a Kings County Supreme Court decision dismissing charges of gang assault in the second degree against defendants Leroy Dunn, Anthony Frazier, and Chief PonceDeLeon. The appellate court ruled that the evidence presented to the grand jury was legally insufficient to establish the defendants’ intent to cause physical injury, a required element of the charge.

The court required evidence proving that the defendants shared the intent to cause physical injury or actively aided in the crime. Mere presence at the scene or passive observation, even if helpful in hindsight, was insufficient to establish accessorial liability.

The charges stemmed from a 2019 incident in which a group of pursuers chased and fatally shot a victim. Surveillance footage showed the defendants observing the pursuit, allegedly alerting the pursuers to the victim’s hiding spot, and fleeing after hearing gunfire. However, the court found no evidence that the defendants shared the pursuers’ intent or actively aided in causing physical injury, as required under Penal Law § 20.00.

The appellate court agreed with the Supreme Court that mere presence at the scene or passive observation, even if deemed helpful to the perpetrators in hindsight, does not meet the legal standard for accessorial liability.

~ People v. Dunn, Leroy; Frazier, Anthony; PonceDeLeon, Chief ~

Court orders recalculation of protection order duration in assault case

The Appellate Division, Second Department, partially vacated an order of protection issued alongside Giovanni Donegan’s conviction for attempted assault in the first degree. While the court upheld the Kings County Supreme Court’s judgment on his conviction and sentence, it ruled that the duration of the order of protection, set to expire in 2043, must be recalculated to account for the time Donegan spent in custody.

The court ruled that an order of protection must account for jail time served and allowed the issue to be raised since the duration wasn’t announced during sentencing, giving the defendant no chance to object earlier.

The appellate court found that the original order of protection, issued at sentencing, did not credit Donegan for jail time served. The court also determined that Donegan’s failure to object earlier was excusable since the duration of the order had not been announced during his plea or sentencing proceedings.

While the case was remitted to the Kings County Supreme Court for a new determination on the order’s duration, the existing order of protection remains in effect pending the court’s decision. The appellate court affirmed the sentence, rejecting Donegan’s claim that it was excessive.

~ People v. Donegan ~

Mitigating factors rejected in level three sex offender designation

The Appellate Division, Second Department, upheld a Kings County Supreme Court decision designating Raja Iqbal a level three sex offender under the Sex Offender Registration Act (SORA). The Nov. 13 ruling affirmed that Iqbal failed to prove mitigating factors sufficient to lower his presumptive risk level.

Iqbal was convicted of first-degree rape in 2015 after pleading guilty. Following a SORA hearing in May 2023, the Supreme Court assessed him 130 points on the risk assessment instrument, resulting in a presumptive level three designation. Iqbal sought a downward departure, arguing that mitigating factors warranted a lower risk level.

The court determined that the factors Iqbal presented were either adequately addressed by SORA guidelines or did not demonstrate a reduced likelihood of reoffense or danger to the community.

~ People v. Iqbal ~

Court upholds level two sex offender designation in child pornography case

The Appellate Division, Second Department, upheld a Kings County Supreme Court decision designating Gregory Lebron a level two sex offender under the Sex Offender Registration Act (SORA). The Nov. 13 ruling affirmed that Lebron, who was convicted in federal court of receipt of child pornography, failed to prove mitigating factors sufficient to justify a lower risk level.

At his SORA hearing, Lebron was assessed 95 points on the risk assessment instrument, leading to a presumptive level two designation. He sought a downward departure, citing factors such as his remorse, acceptance of responsibility, and lack of prior criminal record. However, the court determined that these factors were already accounted for in the SORA guidelines.

While exceptional progress in treatment can support a downward departure, the court found that Lebron failed to provide sufficient evidence of such progress. Additionally, the nature and volume of the images he possessed weighed against reducing his risk level.

~ People of State of New York v. Lebron ~

Appeal waiver blocks challenge to firearm possession conviction

The Appellate Division, Second Department, upheld a Kings County Supreme Court decision convicting Hugh Martin of criminal possession of a firearm, a felony. The appellate court ruled that Martin’s valid waiver of his right to appeal prevented him from contesting the charge or conviction on constitutional grounds.

Martin, who pleaded guilty in 2022, argued that he should have been charged with the lesser offense of criminal possession of a weapon in the fourth degree, a misdemeanor. He claimed the higher charge violated his rights to due process and equal protection and conflicted with the rule of lenity, which favors lesser penalties in cases of legal ambiguity.

The court found that Martin knowingly and voluntarily waived his right to appeal, precluding review of these claims.

~ People v. Martin ~