Opinion
379 KA 19–00864
08-20-2020
The PEOPLE of the State of New York, Respondent, v. Wilbert WILSON, Jr., Defendant-Appellant.
ANDREW D. CORREIA, PUBLIC DEFENDER, LYONS (BRIDGET L. FIELD OF COUNSEL), FOR DEFENDANT-APPELLANT. MICHAEL D. CALARCO, DISTRICT ATTORNEY, LYONS (BRUCE A. ROSEKRANS OF COUNSEL), FOR RESPONDENT.
ANDREW D. CORREIA, PUBLIC DEFENDER, LYONS (BRIDGET L. FIELD OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL D. CALARCO, DISTRICT ATTORNEY, LYONS (BRUCE A. ROSEKRANS OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: On appeal from an order determining that he is a level two risk under the Sex Offender Registration Act ( Correction Law § 168 et seq. ), defendant contends, and the People correctly concede, that County Court erred in assessing five points against him under risk factor 9, for number and nature of prior crimes. The People failed to prove a prior crime by the requisite clear and convincing evidence (see Correction Law § 168-n [3] ; People v. Cook , 29 N.Y.3d 121, 125, 53 N.Y.S.3d 238, 75 N.E.3d 655 [2017] ) inasmuch as the only evidence of a prior crime consists of "hearsay statements that are vague, inconsistent or equivocal, and otherwise unsubstantiated" ( People v. Stewart , 61 A.D.3d 1059, 1060, 876 N.Y.S.2d 208 [3d Dept. 2009] ; see People v. Gonzalez , 28 A.D.3d 1073, 1074, 814 N.Y.S.2d 834 [4th Dept. 2006] ; see generally People v. Mingo , 12 N.Y.3d 563, 573, 883 N.Y.S.2d 154, 910 N.E.2d 983 [2009] ). Nevertheless, the correct total of 75 points would still yield a presumptive level two assessment.
Contrary to defendant's further contention, the court did not abuse its discretion in denying defendant's request for a downward departure from his presumptive risk level. We conclude that defendant "failed to establish by a preponderance of the evidence the existence of mitigating factors not adequately taken into account by the guidelines" ( People v. Lewis , 156 A.D.3d 1431, 1432, 67 N.Y.S.3d 739 [4th Dept. 2017], lv denied 31 N.Y.3d 904, 2018 WL 1957439 [2018] ; see People v. Gillotti , 23 N.Y.3d 841, 861, 864, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ).