DECISION AND ORDER On May 6, 2024, the defendant pled guilty to five counts of Unlawful Surveillance in the Second Degree (Penal Law §250.45[4]). This matter was adjourned to July 15, 2024, for sentencing and adjudication of the defendant’s risk level pursuant to the Sex Offender Registration Act (“SORA”). Prior to sentencing, the People prepared a Risk Assessment Instrument (“RAI”), requesting that the defendant be assessed 80 risk-factor points, corresponding to a risk-level two, and be designated a predicate sex offender. The defendant contests the assessment of 30 points under Risk Factor 9 (Number and Nature of Prior Crimes). The defendant also contests the People’s proposed designation as a predicate sex offender. Finally, the defendant requests a downward departure to risk-level one. For the following reasons, the defendant’s motion is denied in its entirety. The defendant contends that he should only be assessed 15 points, instead of 30 points, under Risk Factor 9, because his July 2020 conviction for second-degree unlawful surveillance is not a “misdemeanor sex crime” as defined by that factor. In support of his assertion, the defendant notes that second-degree unlawful surveillance is not set forth in Correction Law §168-a(2)(b) or (2)(c) “with the rest of the sex offenses” (7/15/24 Minutes at 7), and that classification as a sex offender for that crime is discretionary. In response, the People assert that the plain language of second-degree unlawful surveillance demonstrates that it is sexual in nature. First, the defendant’s conviction for second-degree unlawful surveillance is a “misdemeanor sex crime” for the purposes of Risk Factor 9. The provision under which the defendant was convicted proscribes acts that are unquestionably sexual in nature — viewing, broadcasting, or recording “under the clothing…the sexual or intimate parts of” another. Penal Law §250.45(4). The defendant’s suggestion that it is not a sex offense because it is not listed in Correction Law §168-a(2) or(3), is unavailing. As courts have recognized, a “misdemeanor sex crime” is not limited to those “sex offense[s]” set forth in Correction Law §168-a(2). People v. Perez, 162 A.D.3d 1083, 1084 (2d Dep’t 2018), aff’d on different grounds, 35 N.Y.3d 85 (2021); People v. Mott, 195 A.D.3d 756 (2d Dep’t 2021);see also Perez, 35 N.Y.3d at 99 (Fahey, J., concurring) (that Public Lewdness is not itself a registrable sex offense under Correction Law §168-a (2) is not dispositive of whether it is a “ sex crime” under Risk Factor 9). In any event, second-degree unlawful surveillance is a registrable offense. See Correction Law§168-a(2)(e). Accordingly, the defendant should be assessed 30 points under Risk Factor 9. Next, the defendant is a predicate sex offender. An offender is a “[p]redicate sex offender” when he stands convicted of an offense set forth in Correction Law §168-a(2) or (3), and “has previously been convicted” of any such offenses. Correction Law §168-a(7)(c). Second-degree unlawful surveillance is set forth in Correction Law §168-a(2)(e). Accordingly, the defendant “has previously been convicted of” an offense set forth in Correction Law §168-a(2). The defendant’s reliance on People v. Verdelli, 44 Misc.3d 144(U) (App. Term, 1st Dep’t 2014), is unpersuasive. To be sure, Verdelli suggests that not all misdemeanor sex offenses qualify as predicate sex offenses. However, Verdelli did not indicate the nature of the defendant’s previous misdemeanor sex offense. Forcible Touching convictions, for example, are only registrable under certain circumstances. See Correction Law §168-a(2)(b), (2)(c). In contrast, second-degree unlawful surveillance de facto requires registration, unless the trial court opines that registration would be “unduly harsh and inappropriate.” See generally People v. J.F., 206 A.D.3d 496 (1st Dep’t 2022) (Correction Law §168-a(2)(e) “uniquely provides the trial court with the discretion” to determine that a conviction of second-degree unlawful surveillance does not require sex offender registration; that provision applies at the time of sentencing and cannot be invoked to modify a SORA determination). Accordingly, under the plain meaning of the statute, the defendant has “previously been convicted of” an offense set forth in Correction Law §168-a(2), and thus is a predicate sex offender. Finally, the defendant’s request for a downward departure to risk-level one is denied. Many, if not all, of the circumstances advanced by the defendant in support of his request have already been accounted for in the RAI. See People v. Morales, 223 A.D.3d 850, 851 (2d Dep’t 2024) (the defendant’s purported acceptance of responsibility for his actions and lack of a prior criminal record were adequately accounted for by the Guidelines); People v. Emery, 204 A.D.3d 944, 945 (2d Dep’t 2022) (family support and stable employment already accounted for by the Guidelines). And the defendant’s response to treatment has not been so exceptional as to warrant a downward departure. See People v. Bonnemere, 201 A.D.3d 475, 475 (1st Dep’t 2022) (“Although an exceptional response to sex offender treatment may qualify as a mitigating factor not accounted for in the risk assessment instrument, defendant did not establish his response to sex offender therapy was exceptional”). In any event, even assuming the defendant has established a mitigating factor “of a kind, or to a degree” not adequately accounted for by the Guidelines, none reduce his risk of re-offense — which is high, given that he has already once re-offended despite intervention and treatment. See People v. Hampton, 220 A.D.3d 515, 516 (1st Dep’t 2023) (concluding that defendant’s risk of recidivism was high where he re-offended while on parole supervision). The foregoing is the decision and order of the court. Dated: August 26, 2024
