Opinion
15628, 3799/72, 4532/72
07-07-2015
The PEOPLE of the State of New York, Respondent, v. Curtis JOHNSON, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Beth Fisch Cohen of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Beth Fisch Cohen of counsel), for respondent.
Opinion Order, Supreme Court, New York County (Jill Konviser, J.), entered on or about June 25, 2013, which adjudicated defendant a level three sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art. 6–C), unanimously modified, on the law, to the extent of vacating the designation as a sexually violent offender, and otherwise affirmed, without costs.
Defendant was properly adjudicated a level three sex offender. Clear and convincing evidence established that defendant was properly scored 30 points under the risk factor for number of victims (see People v. Mingo, 12 N.Y.3d 563, 883 N.Y.S.2d 154, 910 N.E.2d 983 [2009] ). The court properly considered highly reliable proof of a pattern of associated sex crimes, since neither the Board nor the hearing court was limited to the underlying convictions (see People v. Epstein, 89 A.D.3d 570, 933 N.Y.S.2d 239 [1st Dept 2011] ; People v. Johnson, 77 A.D.3d 548, 909 N.Y.S.2d 716 [1st Dept 2010], lv. denied 16 N.Y.3d 705, 2011 WL 536611 [2011] ).
Defendant's contention that he should have received a downward departure is unpreserved because he made no such application to the hearing court (see People v. Gillotti, 23 N.Y.3d 841, 861, n. 5, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ). In any event, we find no basis for such a departure.
As the People concede, a court making a redetermination under Doe v. Pataki, 3 F.Supp.2d 456 (1998) may not make a sexually violent offender designation (People v. Velez, 100 A.D.3d 847, 954 N.Y.S.2d 192 [2d Dept.2012], lv. denied 21 N.Y.3d 853, 2013 WL 1800534 [2012] ).
TOM, J.P., ANDRIAS, FEINMAN, GISCHE, KAPNICK, JJ., concur.