Opinion
2015–03343
02-21-2018
PEOPLE of State of New York, respondent, v. Jimmy SMITH, appellant.
Seymour W. James, Jr., New York, N.Y. (Lorraine Maddalo of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Anthea H. Bruffee of counsel), for respondent.
Seymour W. James, Jr., New York, N.Y. (Lorraine Maddalo of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Anthea H. Bruffee of counsel), for respondent.
REINALDO E. RIVERA, J.P., L. PRISCILLA HALL, ROBERT J. MILLER, COLLEEN D. DUFFY, JJ.
DECISION & ORDERAppeal by the defendant from an order of the Supreme Court, Kings County (Michael J. Brennan, J.), dated March 25, 2015, 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.
The defendant appeals from his designation as a level three sex offender pursuant to the Sex Offender Registration Act (see Correction Law art 6–C; hereinafter SORA).
Contrary to the defendant's contention, the Supreme Court properly assessed points under risk factor 9 of the risk assessment instrument (hereinafter the RAI) based on the defendant's prior youthful offender adjudication (see People v. Simmons, 146 A.D.3d 912, 912–913, 45 N.Y.S.3d 535 ; People v. Francis, 137 A.D.3d 91, 92, 25 N.Y.S.3d 221, affd 30 N.Y.3d 737, –––N.Y.S.3d ––––, ––– N.E.3d ––––, 2018 N.Y. Slip Op. 01017, 2018 WL 827439 [2018] ; People v. Rodriguez, 136 A.D.3d 880, 24 N.Y.S.3d 914 ). The court also properly assessed 20 points under risk factor 7 of the RAI, as the People demonstrated by clear and convincing evidence that the defendant's relationship with the complainant had been established or promoted for the primary purpose of victimization (see People v. Picariello, 145 A.D.3d 804, 805, 43 N.Y.S.3d 467 ; People v. Dilillo, 143 A.D.3d 960, 960–961, 40 N.Y.S.3d 440 ; People v. Uphael, 140 A.D.3d 1143, 1144, 35 N.Y.S.3d 194 ).
Finally, the Supreme Court properly denied the defendant's application for a downward departure from his presumptive risk level designation, as he failed to identify any mitigating circumstances that are of a kind or to a degree not adequately taken into account by the SORA Guidelines (see SORA: Risk Assessment Guidelines and Commentary [2006]; People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Robinson, 145 A.D.3d 805, 806, 41 N.Y.S.3d 908 ; People v. Figueroa, 138 A.D.3d 708, 709, 27 N.Y.S.3d 885 ).
RIVERA, J.P., HALL, MILLER and DUFFY, JJ., concur.