Opinion
2021-00544
03-02-2022
The People of the State of New York, respondent, v. Charles Johnson, appellant.
Clare J. Degnan, White Plains, NY (Salvatore A. Gaetani of counsel; Hayley Cohen on the brief), for appellant. Miriam E. Rocah, District Attorney, White Plains, NY (Shea Scanlon Lomma and William C. Milaccio of counsel), for respondent.
Clare J. Degnan, White Plains, NY (Salvatore A. Gaetani of counsel; Hayley Cohen on the brief), for appellant.
Miriam E. Rocah, District Attorney, White Plains, NY (Shea Scanlon Lomma and William C. Milaccio of counsel), for respondent.
BETSY BARROS, J.P., CHERYL E. CHAMBERS, JOSEPH A. ZAYAS, DEBORAH A. DOWLING, JJ.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Westchester County (Susan Cacace, J.), dated November 9, 2020, 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.
In 2019, the defendant was convicted, upon his plea of guilty, of attempted sexual abuse in the first degree. Prior to his scheduled release from prison, the Board of Examiners of Sex Offenders (hereinafter the Board) assessed the defendant a total of 65 points, which would make him a presumptive level one sex offender. The Board did not recommend a departure from that risk level.
At a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6-C; hereinafter SORA), the People sought, inter alia, the assessment of an additional 20 points under risk factor 13 (conduct while confined/supervised), which would make the defendant a presumptive level two sex offender. In addition, the People requested an upward departure to designate the defendant a level three sex offender. The defendant challenged the assessment of additional points under risk factor 13, as well as the upward departure. The defendant also requested a downward departure.
In an order dated November 9, 2020, the Supreme Court assessed the defendant a total of 85 points. In addition, the court granted the People's application for an upward departure and designated the defendant a level three sex offender. The court also denied the defendant's application for a downward departure. The defendant appeals.
Under the circumstances of this case, the defendant's contention that the 20 points assessed under risk factor 13 should be deducted from his total score based on the People's violation of the 10-day notice provision of Correction Law § 168-n(3) is without merit (see People v Quinones, 159 A.D.3d 424; see also People v Almonte, 171 A.D.3d 660). The People provided the defendant with timely notice of the factual predicate for that request, and, under the circumstances, he had a meaningful opportunity to respond to the application (see People v Baxin, 26 N.Y.3d 6, 10; People v David W., 95 N.Y.2d 130, 138).
Moreover, contrary to the defendant's contention, the Supreme Court providently exercised its discretion in granting the People's application for an upward departure. The People demonstrated, by clear and convincing evidence (see People v Mingo, 12 N.Y.3d 563, 574, 576-577), the existence of aggravating factors not adequately taken into account by the SORA Guidelines that tended to establish a higher likelihood of reoffense or danger to the community (see People v Gillotti, 23 N.Y.3d 841, 861-862; People v Wyatt, 89 A.D.3d 112, 123; SORA: Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter Guidelines]), including the fact that the defendant's 2011 conviction of attempted assault in the second degree involved a sexual component substantially similar to the instant offense (see People v Davis, 139 A.D.3d 1226, 1227-1228; People v Gabriel, 129 A.D.3d 1046, 1047; People v Faver, 113 A.D.3d 662, 663; People v Freeman, 85 A.D.3d 1335, 1336; People v Twyman, 59 A.D.3d 415, 416).
Also contrary to the defendant's contention, the Supreme Court properly denied his application for a downward departure, since he failed to demonstrate the existence of any mitigating factors not adequately taken into account by the Guidelines that tended to establish a lower likelihood of reoffense or danger to the community (see People v Gillotti, 23 N.Y.3d at 861; People v Roelofsen, 195 A.D.3d 962; People v Saintilus, 169 A.D.3d 838, 839; People v Santiago, 137 A.D.3d 762, 764-765).
Accordingly, the Supreme Court properly designated the defendant a level three sex offender.
BARROS, J.P., CHAMBERS, ZAYAS and DOWLING, JJ., concur.