Opinion
2014–07918
10-24-2018
PEOPLE of State of New York, respondent, v. Johnny MEDINA, appellant.
The Legal Aid Society, New York, N.Y. (Steven J. Miraglia of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy, and Julian Joiris of counsel), for respondent.
The Legal Aid Society, New York, N.Y. (Steven J. Miraglia of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy, and Julian Joiris of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., MARK C. DILLON, JEFFREY A. COHEN, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Kings County (John G. Ingram, J.), dated May 16, 2014, which, after a hearing, designated him a level two sex offender and a sexual predator pursuant to Correction Law article 6–C.
ORDERED that the order is modified, on the law, by deleting the provision thereof designating the defendant a sexual predator; as so modified, the order is affirmed, without costs or disbursements.
The defendant appeals from an order designating him a level two sex offender and a sexual predator pursuant to the Sex Offender Registration Act (see Correction Law art 6–C [hereinafter SORA] ).
Even assuming that the Supreme Court erred in assessing the defendant 10 points under risk factor 12 of the risk assessment instrument, subtracting these 10 points would not alter the defendant's presumptive risk level (see People v. Gilmore, 159 A.D.3d 839, 840, 69 N.Y.S.3d 807 ; People v. Britton, 148 A.D.3d 1064, 1065, 49 N.Y.S.3d 742, affd 31 N.Y.3d 1019, 75 N.Y.S.3d 459, 99 N.E.3d 852 ; People v. Perez, 115 A.D.3d 919, 919–920, 982 N.Y.S.2d 568 ).
The Supreme Court did not err in declining the defendant's request, made at the time of the SORA hearing, for an adjournment of the hearing and the appointment of an expert psychiatrist or psychologist to assist him in seeking a downward departure from his presumptive risk level designation. The defendant did not establish that the appointment of an expert was necessary (see County Law § 722–c ; People v. Linton, 94 A.D.3d 962, 962–963, 942 N.Y.S.2d 371 ; see also People v. Ganntt, 159 A.D.3d 986, 73 N.Y.S.3d 620 ; People v. James, 134 A.D.3d 917, 917–918, 20 N.Y.S.3d 540 ).
In denying the defendant a downward departure, the Supreme Court erroneously suggested that a defendant is required to prove the existence of mitigating circumstances by clear and convincing evidence, as opposed to a preponderance of the evidence (see People v. Gillotti, 23 N.Y.3d 841, 864, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Bowden, 88 A.D.3d 972, 973, 931 N.Y.S.2d 640 ). However, "remittal is not required where, as here, the record is sufficient for this Court to make its own findings of fact and conclusions of law" ( People v. Bowden, 88 A.D.3d at 973, 931 N.Y.S.2d 640 ). Since the defendant did not present any evidence of mitigating circumstances not adequately taken into account by the SORA Guidelines (see SORA: Risk Assessment Guidelines and Commentary [2006] ), a downward departure was not warranted (see People v. Gillotti, 23 N.Y.3d at 864, 994 N.Y.S.2d 1, 18 N.E.3d 701 ).
Accordingly, we agree with the Supreme Court's designation of the defendant as a level two sex offender.
However, as the People correctly concede, the Supreme Court erred in, sua sponte, designating the defendant a sexual predator. Neither the Board of Examiners of Sex Offenders nor the People had recommended such a designation, and the defendant was never afforded an opportunity to be heard on the issue of whether he should be so designated (see Correction Law § 168–n[3] ; People v. Manougian, 132 A.D.3d 746, 747, 17 N.Y.S.3d 507 ; People v. Hackett, 89 A.D.3d 1479, 1480, 933 N.Y.S.2d 470 ). Accordingly, we modify the order so as to delete the provision thereof designating the defendant a sexual predator.
SCHEINKMAN, P.J., DILLON, COHEN and CHRISTOPHER, JJ., concur.