Opinion
02-24-2016
PEOPLE of State of New York, respondent, v. Juan SANCHEZ, appellant.
Seymour W. James, Jr., New York, N.Y. (Lorraine Maddalo of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent.
Seymour W. James, Jr., New York, N.Y. (Lorraine Maddalo of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent.
RUTH C. BALKIN, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, and JOSEPH J. MALTESE, JJ.
Appeal by the defendant from an order of the Supreme Court, Kings County (Mondo, J.), dated March 15, 2012, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6–C.
ORDERED that the order is affirmed, without costs or disbursements.
In establishing a defendant's risk level pursuant to the Sex Offender Registration Act (Correction Law art 6–C; hereinafter SORA), the People bear the burden of establishing, by clear and convincing evidence, the facts supporting the determinations sought (see Correction Law § 168–n[3] ; People v. Pettigrew, 14 N.Y.3d 406, 408, 901 N.Y.S.2d 569, 927 N.E.2d 1053 ; People v. Mingo, 12 N.Y.3d 563, 571, 883 N.Y.S.2d 154, 910 N.E.2d 983 ). "In assessing points, evidence may be derived from the defendant's admissions, the victim's statements, evaluative reports completed by the supervising probation officer, parole officer, or corrections counselor, case summaries prepared by the Board of Examiners of Sex Offenders ... or any other reliable source, including reliable hearsay" (People v. Crandall, 90 A.D.3d 628, 629, 934 N.Y.S.2d 446 ; see People v. Mingo, 12 N.Y.3d at 571–573, 883 N.Y.S.2d 154, 910 N.E.2d 983 ).
Contrary to the defendant's contention, the People established, by clear and convincing evidence, that he engaged in a continuing course of sexual misconduct with the victim. The evidence established that the defendant committed two or more acts of sexual contact with the victim, at least one of which was an enumerated offense, over a period greater than 24 hours (see Sex Offender Registration Act: Risk Guidelines and Commentary [hereinafter SORA Guidelines] at 10 [2006]; People v. Lucius, 122 A.D.3d 819, 996 N.Y.S.2d 659 ; People v. Thompson, 111 A.D.3d 613, 973 N.Y.S.2d 808 ). Accordingly, 20 points were properly assessed against the defendant under risk factor 4, based on a continuing course of sexual misconduct.
Contrary to the defendant's contention, the Supreme Court properly denied his request for a downward departure from his presumptive risk level designation, as the defendant failed to identify and establish the existence of a mitigating factor which was not adequately taken into account by the SORA Guidelines (see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1 ; People v. Lucius, 122 A.D.3d at 819–820, 996 N.Y.S.2d 659 ; see generally People v. Wyatt, 89 A.D.3d 112, 931 N.Y.S.2d 85 ).