Opinion
11475 Ind. 2190/13
05-07-2020
The PEOPLE of the State of New York, Respondent, v. Devonte KELLEY, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Hunter Haney of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Valerie Figueredo of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Hunter Haney of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Valerie Figueredo of counsel), for respondent.
Acosta, P.J., Renwick, Richter, González, JJ.
Order, Supreme Court, New York County (Ellen N. Biben, J.), entered on or about May 8, 2017, which adjudicated defendant a level three sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6–c), unanimously affirmed, without costs.
Clear and convincing evidence supported the court's assessment of 20 points under the risk factor for the relationship (strangers) between defendant and a victim (see People v. Postelli, 136 A.D.3d 514, 24 N.Y.S.3d 645 [1st Dept. 2016], lv denied 27 N.Y.3d 907, 36 N.Y.S.3d 621, 56 N.E.3d 901 [2016] ). The evidence presented to the hearing court, including defendant's own exhibits, supported a finding that defendant was a stranger to at least one of his victims according to the guidelines. Among other things, the victims' knowledge of defendant as a neighborhood person who should be avoided because of his bad reputation was not an acquaintanceship for purposes of this risk factor.
In light of this determination, defendant's point score would make him a level three offender regardless of whether points should have assessed under the risk factor for defendant's age (20 years or less) at the time of his first sex crime. In any event, because of defendant's undisputed age and the plain language of the risk factor, the court was required to assess those points, with any overassessment to be addressed by way of a downward departure (see People v. Johnson, 11 N.Y.3d 416, 420, 872 N.Y.S.2d 379, 900 N.E.2d 930 [2008] ; People v. Ferrer, 69 A.D.3d 513, 514, 894 N.Y.S.2d 387 [1st Dept. 2010], lv denied 14 N.Y.3d 709, 901 N.Y.S.2d 143, 927 N.E.2d 564 [2010] ). However, based on the totality of the record before the hearing court, we find that the court providently exercised its discretion in declining to grant a downward departure (see generally People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ).
The court was required to designate defendant a sexually violent offender because he was convicted of an enumerated offense, as an adult offender under New York law, and his arguments to the contrary, including his constitutional claims, are unavailing (see People v. Cisneros, 165 A.D.3d 499, 499, 83 N.Y.S.3d 888 [1st Dept. 2018] ; People v. Delacruz, 161 A.D.3d 519, 519, 73 N.Y.S.3d 748 [1st Dept. 2018] lv denied 32 N.Y.3d 1037, 88 N.Y.S.3d 394, 113 N.E.3d 450 [2018] ).
Defendant did not preserve his challenge to the sufficiency of the court's findings. In any event, we find that a remand for further proceedings is unnecessary.