Opinion
658 KA 20-01461
07-16-2021
The PEOPLE of the State of New York, Respondent, v. Ronald JONES, Defendant-Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF COUNSEL), FOR DEFENDANT-APPELLANT.
PRESENT: CENTRA, J.P., CARNI, CURRAN, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: On appeal from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act ( Correction Law § 168 et seq. ), defendant contends that County Court erred in assessing points against him under risk factor 3. We reject that contention. The People provided the requisite clear and convincing evidence to support the assessment of 30 points for risk factor 3, properly relying on the case summary to substantiate the number of victims (see People v. Martinez , 192 A.D.3d 1663, 1663, 141 N.Y.S.3d 385 [4th Dept. 2021] ; People v. Mangan , 174 A.D.3d 1337, 1338, 101 N.Y.S.3d 809 [4th Dept. 2019], lv denied 34 N.Y.3d 905, 2019 WL 6318219 [2019] ). According to the case summary, defendant and two other adult males gave three minor females alcohol and illegal drugs, engaged in sexual conduct with them, recorded portions of the sexual acts, and then posted the recordings on the Internet. Although defendant pleaded guilty to only one count of criminal sexual act in the third degree, "the court is not limited to consideration of the charges to which the defendant pleaded guilty" ( People v. Dubeau , 174 A.D.3d 748, 749, 102 N.Y.S.3d 276 [2d Dept. 2019], lv dismissed 34 N.Y.3d 1150, 119 N.Y.S.3d 433, 142 N.E.3d 116 [2020] ; see People v. Menjivar , 121 A.D.3d 660, 661, 993 N.Y.S.2d 166 [2d Dept. 2014], lv denied 24 N.Y.3d 915, 2015 WL 651937 [2015] ; People v. Gardiner , 92 A.D.3d 1228, 1229, 938 N.Y.S.2d 389 [4th Dept. 2012], lv denied 19 N.Y.3d 801, 2012 WL 1502782 [2012] ). Moreover, although defendant denies that he had sexual contact with more than one victim, risk factor 3 does not "require actual, physical, sexual contact between the offender and victim" ( People v. DeDona , 102 A.D.3d 58, 63, 954 N.Y.S.2d 541 [2d Dept. 2012] ; see People v. Izzo , 26 N.Y.3d 999, 1002, 19 N.Y.S.3d 799, 41 N.E.3d 763 [2015] ).
Finally, contrary to defendant's further contention, we conclude that the court did not err in denying defendant's request for a downward departure from his presumptive risk level inasmuch as defendant "failed to establish by a preponderance of the evidence any ground for a downward departure" ( People v. Cathy , 134 A.D.3d 1579, 1579-1580, 22 N.Y.S.3d 747 [4th Dept. 2015] [internal quotation marks omitted]; see People v. Martinez-Guzman , 109 A.D.3d 462, 462-463, 970 N.Y.S.2d 93 [2d Dept. 2013], lv denied 22 N.Y.3d 854, 2013 WL 5716146 [2013] ). Moreover, even assuming, arguendo, that defendant established facts that might warrant a downward departure from his presumptive risk level, upon examining all of the relevant circumstances, we conclude that the court properly "exercised its discretion in denying defendant's application for a downward departure" ( Martinez-Guzman , 109 A.D.3d at 463, 970 N.Y.S.2d 93 ).