Opinion
1539 KA 15–01842
12-22-2017
The PEOPLE of the State of New York, Respondent, v. Richard James AUGSBURY, Defendant–Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY DUGUAY OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY DUGUAY OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, LINDLEY, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Memorandum:
On appeal from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act ( [SORA] Correction Law § 168 et seq. ), defendant contends that County Court erred in considering the victim's grand jury testimony, which was not disclosed to defendant until after the SORA hearing (see generally People v. Baxin, 26 N.Y.3d 6, 11, 19 N.Y.S.3d 205, 41 N.E.3d 62 [2015] ). That contention is not preserved for our review because defendant failed to object at the hearing to the court's consideration of the grand jury testimony, "despite [the People's] explicit reliance thereon" ( People v. Jewell, 119 A.D.3d 1446, 1447, 989 N.Y.S.2d 766 [4th Dept. 2014], lv denied 24 N.Y.3d 905, 995 N.Y.S.2d 714, 20 N.E.3d 660 [2014] ; see People v. Wells, 138 A.D.3d 947, 950–951, 30 N.Y.S.3d 198 [2d Dept. 2016], lv denied 28 N.Y.3d 902, 40 N.Y.S.3d 350, 63 N.E.3d 70 [2016] ). In any event, we conclude that the court's consideration of the victim's grand jury testimony constitutes harmless error. The material facts established by the victim's testimony, i.e., that she was 10 years old or less when defendant first subjected her to sexual contact, and that she was asleep at the beginning of at least one incident of sexual contact, were independently established by reliable hearsay in the presentence report (see Baxin, 26 N.Y.3d at 11–12, 19 N.Y.S.3d 205, 41 N.E.3d 62 ; Wells, 138 A.D.3d at 952, 30 N.Y.S.3d 198 ; see generally People v. Mingo, 12 N.Y.3d 563, 573, 883 N.Y.S.2d 154, 910 N.E.2d 983 [2009] ).
Defendant further contends that the court erred in failing to address his request for a downward departure to a level two risk. That omission by the court does not require remittal because the record is sufficient for us to make our own findings of fact and conclusions of law with respect to defendant's request (see People v. McKee, 66 A.D.3d 854, 854, 888 N.Y.S.2d 103 [2d Dept. 2009], lv denied 13 N.Y.3d 715, 895 N.Y.S.2d 314, 922 N.E.2d 903 [2010] ; see generally People v. Urbanski, 74 A.D.3d 1882, 1883, 903 N.Y.S.2d 648 [4th Dept. 2010], lv denied 15 N.Y.3d 707, 909 N.Y.S.2d 21, 935 N.E.2d 813 [2010] ). Even assuming, arguendo, that defendant preserved for our review the ground for a downward departure that he advances on appeal, i.e., that the assessment of points under risk factors 5 and 6 resulted in "an inflated ... score" on the risk assessment instrument and thus overassessed the risk that he presents to public safety, we conclude that he failed to allege a mitigating circumstance that is not adequately taken into account by the risk assessment guidelines (see People v. King, 148 A.D.3d 1599, 1600, 48 N.Y.S.3d 910 [4th Dept. 2017], lv denied 29 N.Y.3d 914, 63 N.Y.S.3d 4, 85 N.E.3d 99 [2017] ; People v. Carlberg, 145 A.D.3d 1646, 1646–1647 [4th Dept. 2016] ; see generally People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ). The assessment of points for both the age of the victim under risk factor 5 and the fact that she was asleep and therefore physically helpless under risk factor 6 " ‘did not constitute impermissible double counting’ " ( People v. Miller, 149 A.D.3d 1279, 1281, 52 N.Y.S.3d 148 [3d Dept. 2017] ; see People v. Smith, 144 A.D.3d 652, 653, 40 N.Y.S.3d 473 [2d Dept. 2016], lv denied 28 N.Y.3d 915, 52 N.Y.S.3d 292, 74 N.E.3d 677 [2017] ; People v. Edwards, 93 A.D.3d 1210, 1211, 940 N.Y.S.2d 417 [4th Dept. 2012] ), and thus the application of the guidelines did not result in an overassessment of the risk that defendant presents to public safety (see generally People v. Cathy, 134 A.D.3d 1579, 1580, 22 N.Y.S.3d 747 [4th Dept. 2015] ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.