Opinion
2018–10378
11-18-2020
PEOPLE of State of New York, respondent, v. Shawn COLLINS, appellant.
Salvatore C. Adamo, New York, NY, for appellant. Timothy D. Sini, District Attorney, Riverhead, N.Y. (Kathleen Becker Langlan of counsel), for respondent.
Salvatore C. Adamo, New York, NY, for appellant.
Timothy D. Sini, District Attorney, Riverhead, N.Y. (Kathleen Becker Langlan of counsel), for respondent.
RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, FRANCESCA E. CONNOLLY, PAUL WOOTEN, JJ.
DECISION & ORDER
Appeal by the defendant from an order of the County Court, Suffolk County (Barbara Kahn, J.), dated July 18, 2018, 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.
After a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6–C; hereinafter SORA), at which the defendant contested the assessment of certain points and requested a downward departure from his presumptive risk level, the County Court designated him a level three sex offender.
In establishing a defendant's risk level pursuant to SORA, the People bear the burden of establishing the facts supporting the determination sought by clear and convincing evidence (see Correction Law § 168–n[3] ). Here, the People established, by clear and convincing evidence, the propriety of assessing 15 points under risk factor 12, based upon the defendant's expulsion from sex offender treatment due to his refusal to make admissions required by the program regarding his misconduct (see People v. Grigg, 112 A.D.3d 802, 803, 977 N.Y.S.2d 84 ). Additionally, we agree with the assessment of 15 points under risk factor 11, for a history of substance abuse, despite the defendant's claimed abstinence from drugs and alcohol while incarcerated (see People v. Moultrie, 147 A.D.3d 800, 801, 45 N.Y.S.3d 590 ). We further agree with the assessment of 10 points under risk factor 13, based upon the defendant's commission of numerous tier II and tier III disciplinary violations while in prison (see People v. Guadeloupe, 173 A.D.3d 910, 911, 100 N.Y.S.3d 384 ).
The defendant identified, and proved the existence of, an appropriate mitigating factor for a downward departure from his presumptive risk level; namely, that "the victim's lack of consent [was] due only to [an] inability to consent by virtue of age" (SORA: Risk Assessment Guidelines and Commentary at 9; see People v. Walker, 146 A.D.3d 824, 826, 45 N.Y.S.3d 153 ). Nevertheless, we agree with the County Court's determination that a downward departure was not warranted as a matter of discretion in light of, among other things, the defendant's inability to complete sex offender treatment due to his refusal to make certain admissions regarding his misconduct, his lack of remorse when interviewed by the Department of Probation, and his poor disciplinary record throughout his incarceration (see People v. Robinson, 186 A.D.3d 759, 127 N.Y.S.3d 265 ).
Accordingly, we affirm the defendant's designation as a level three sex offender.
BALKIN, J.P., CHAMBERS, COHEN, CONNOLLY and WOOTEN, JJ., concur.