Opinion
622 KA 19-02349
08-26-2021
The PEOPLE of the State of New York, Respondent, v. Kavyia A. SPENCER, Defendant-Appellant. (Appeal No. 1.)
NICHOLAS B. ROBINSON, PUBLIC DEFENDER, LOCKPORT (THERESA L. PREZIOSO OF COUNSEL), FOR DEFENDANT-APPELLANT. BRIAN D. SEAMAN, DISTRICT ATTORNEY, LOCKPORT (LAURA T. JORDAN OF COUNSEL), FOR RESPONDENT.
NICHOLAS B. ROBINSON, PUBLIC DEFENDER, LOCKPORT (THERESA L. PREZIOSO OF COUNSEL), FOR DEFENDANT-APPELLANT.
BRIAN D. SEAMAN, DISTRICT ATTORNEY, LOCKPORT (LAURA T. JORDAN OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals, in appeal No. 1, from a judgment convicting him upon his plea of guilty of rape in the third degree ( Penal Law § 130.25 [1] ). In appeal No. 2, he appeals from an order that determined him to be a level two risk pursuant to the Sex Offender Registration Act ([SORA] Correction Law § 168 et seq. ). We affirm in each appeal.
In appeal No. 1, defendant contends that his waiver of the right to appeal is invalid and that his sentence is excessive. Initially, we note that, contrary to the People's assertion, "[i]t is well settled that this Court's sentence-review power may be exercised, if the interest of justice warrants, without deference to the sentencing court ..., and that we may substitute our own discretion for that of a trial court which has not abused its discretion in the imposition of a sentence" ( People v. Colon , 192 A.D.3d 1567, 1570, 144 N.Y.S.3d 499 [4th Dept. 2021], lv denied 37 N.Y.3d 955, 147 N.Y.S.3d 535, 536, 170 N.E.3d 409, 410 [2021] [internal quotation marks omitted]; see People v. Reid , 173 A.D.3d 1663, 1666, 101 N.Y.S.3d 793 [4th Dept. 2019] ; People v. Johnson , 136 A.D.3d 1417, 1418, 25 N.Y.S.3d 510 [4th Dept. 2016], lv denied 27 N.Y.3d 1134, 39 N.Y.S.3d 116, 61 N.E.3d 515 [2016] ). Nevertheless, "[e]ven assuming, arguendo, that defendant's waiver of the right to appeal is invalid and thus does not preclude our review of [his] challenge to the severity of [his] sentence" ( People v. Baker , 158 A.D.3d 1296, 1296, 68 N.Y.S.3d 349 [4th Dept. 2018], lv denied 31 N.Y.3d 1011, 78 N.Y.S.3d 281, 102 N.E.3d 1062 [2018] ; see People v. Bishop , 192 A.D.3d 1504, 1504, 140 N.Y.S.3d 811 [4th Dept. 2021], lv denied 36 N.Y.3d 1118, 146 N.Y.S.3d 201, 169 N.E.3d 559 [2021] ; People v. Alls , 187 A.D.3d 1515, 1515, 129 N.Y.S.3d 881 [4th Dept. 2020] ), we conclude that the sentence is not unduly harsh or severe. Furthermore, again assuming, arguendo, that defendant's waiver of the right to appeal is invalid and thus does not preclude our review of his contentions concerning the denial of his request for youthful offender status, after applying the nine Cruickshank factors ( People v. Cruickshank , 105 A.D.2d 325, 334, 484 N.Y.S.2d 328 [3d Dept. 1985], affd 67 N.Y.2d 625, 499 N.Y.S.2d 663, 490 N.E.2d 530 [1986] ; see People v. Z.H. , 192 A.D.3d 55, 58-61, 137 N.Y.S.3d 866 [4th Dept. 2020] ; People v. Keith B.J. , 158 A.D.3d 1160, 1160, 70 N.Y.S.3d 291 [4th Dept. 2018] ), we conclude that County Court did not abuse its discretion in refusing to grant defendant youthful offender status (see generally People v. Macon , 169 A.D.3d 1439, 1440, 92 N.Y.S.3d 812 [4th Dept. 2019], lv denied 33 N.Y.3d 978, 101 N.Y.S.3d 224, 124 N.E.3d 713 [2019] ), and we decline to exercise our discretion in the interest of justice to adjudicate defendant a youthful offender (see People v. Kocher , 116 A.D.3d 1301, 1301-1303, 984 N.Y.S.2d 244 [3d Dept. 2014] ; see generally People v. Rice , 175 A.D.3d 1826, 1826, 109 N.Y.S.3d 808 [4th Dept. 2019], lv denied 34 N.Y.3d 1132, 118 N.Y.S.3d 511, 141 N.E.3d 467 [2020] ).
In appeal No. 2, defendant contends that the court erred in assessing points under risk factors 11 and 13. We reject that contention. With respect to risk factor 11, a SORA court may assess 15 points if the defendant "has a substance abuse history or was abusing drugs ... or alcohol at the time of the offense" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 15 [2006] [Guidelines]). Here, the People established, by the requisite clear and convincing evidence (see People v. Mingo , 12 N.Y.3d 563, 571, 883 N.Y.S.2d 154, 910 N.E.2d 983 [2009] ; see generally Correction Law § 168-n [3] ), that defendant was intoxicated at the time of the crime and that he admittedly was using alcohol to excess during the college semester during which the crime occurred. Thus, the court properly assessed 15 points under risk factor 11 (see People v. McClendon , 175 A.D.3d 1329, 1330, 108 N.Y.S.3d 36 [2d Dept. 2019], lv denied 34 N.Y.3d 910, 2020 WL 772931 [2020] ; see generally People v. Williamson , 181 A.D.3d 1100, 1101, 119 N.Y.S.3d 315 [3d Dept. 2020] ).
Furthermore, contrary to defendant's contention, risk factor 13, which concerns conduct while confined or under supervision (see Guidelines at 16), permits the assessment of points for, insofar as relevant here, "defendant's behavior while being supervised on probation" ( People v. Miller , 186 A.D.3d 1095, 1097, 128 N.Y.S.3d 405 [4th Dept. 2020], lv denied 36 N.Y.3d 903, 2020 WL 7529188 [2020] ; see People v. Young , 108 A.D.3d 1232, 1233, 969 N.Y.S.2d 372 [4th Dept. 2013], lv denied 22 N.Y.3d 853, 2013 WL 5658386 [2013], rearg denied 22 N.Y.3d 1036, 981 N.Y.S.2d 351, 4 N.E.3d 362 [2013] ). Here, the People established by clear and convincing evidence that defendant's conduct while on interim probation was unsatisfactory.