Opinion
5317 Ind. 1033/12
01-02-2018
The PEOPLE of the State of New York, Respondent, v. Roberto GONZALEZ, Defendant–Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (Denise Fabiano of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Samuel Z. Goldfine of counsel), for respondent.
Seymour W. James, Jr., The Legal Aid Society, New York (Denise Fabiano of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Samuel Z. Goldfine of counsel), for respondent.
Manzanet–Daniels, J.P., Mazzarelli, Andrias, Gesmer, Oing, JJ.
Order, Supreme Court, New York County (Charles H. Solomon, J.), entered on or about December 19, 2013, which adjudicated defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.
Defendant's claim that the court erred in certifying him as a sex offender on his underlying conviction of second-degree unlawful surveillance (a crime for which sex offender registration is not automatic) is not reviewable on this appeal from a risk level determination (see People v. Lema, 157 A.D.3d 406, 68 N.E.3d 436, 2018 WL 256567, Appeal No. 5306 [decided herewith] ). Defendant's failure to challenge his certification on direct appeal of his conviction thus precludes review of his present claim.
In any event, regardless of the issue of reviewability, while defendant agreed to register as a sex offender as a condition of his plea bargain, the plea court expressly and appropriately exercised its discretion in certifying him as a sex offender. Although an exemption from sex offender registration for an unlawful surveillance conviction under Penal Law § 250.45(3) may be available if "registration would be unduly harsh and inappropriate" ( Correction Law § 168–a[2][e] ), defendant has not made such a showing, particularly given the circumstances of his crime (see People v. Simmons, 129 A.D.3d 520, 10 N.Y.S.3d 426 [1st Dept. 2015], lv denied 26 N.Y.3d 903, 17 N.Y.S.3d 84, 38 N.E.3d 830 [2015] ). As in Simmons, the "circumstances of the surveillance were repulsive, and they raise concerns about defendant's character and potential for recidivism" ( Simmons, 129 A.D.3d at 521, 10 N.Y.S.3d 426 ).
The court properly assessed 15 points under the risk factor for drug or alcohol abuse. Defendant's admissions to corrections officials of his extensive history of substance abuse provided clear and convincing evidence of such abuse, thus satisfying the standard set forth in People v. Palmer, 20 N.Y.3d 373, 378–379, 960 N.Y.S.2d 719, 984 N.E.2d 917 (2013).
The court properly exercised its discretion in declining to grant a downward departure (see People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ). There were no mitigating factors that were not adequately taken into account by the risk assessment instrument, and the record does not establish any basis for a departure