Seymour W. James, Jr., New York, NY (Elizabeth L. Isaacs of
counsel), for appellant.
Eric
Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard
Joblove, Anthea H. Bruffee, and Daniel Berman of counsel),
for respondent.
WILLIAM F. MASTRO, J.P., L. PRISCILLA HALL, ROBERT J. MILLER,
VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
Appeal
by the defendant from an order of the Supreme Court, Kings
County (Brennan, J.), dated September 15, 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.
In
establishing an offender's appropriate risk level under
the Sex Offender Registration Act (see Correction
Law art 6-C; hereinafter SORA), the People "bear the
burden of proving the facts supporting the determinations
sought by clear and convincing evidence" (Correction Law
§ 168-n[3]). Contrary to the defendant's contention,
the Supreme Court properly assessed 20 points against him
under risk factor 6, as the People established, by clear and
convincing evidence, that two of the five subject victims
were asleep at the time of the defendant's initial
touching and, therefore, physically helpless (see
SORA: Assessment Guidelines and Commentary at 11 [2006]
[hereinafter Guidelines]; Penal Law § 130.00[7];
People v Smith, 144 A.D.3d 652, 653; People v
Acevedo, 124 A.D.3d 500; People v Richardson,
101 A.D.3d 837, 838; People v Duff, 96 A.D.3d 1031;
People v Howell, 82 A.D.3d 857).
The
defendant's contention that the Supreme Court improperly
assessed 30 points under risk factor 3 for the number of
victims being three or more is unpreserved for appellate
review, since he did not object to the assessment of these
points at the SORA hearing (see People v Benitez,
140 A.D.3d 1140, 1141; People v Williams, 55 A.D.3d
708, 709; People v Awalt, 17 A.D.3d 336, 336). In
any event, the additional points were properly assessed, as
the People established by clear and convincing evidence that
the defendant victimized more than three children in the
underlying case that ultimately resulted in his conviction of
rape in the first degree (see SORA Guidelines at 10;
People v Urrego, 145 A.D.3d 923, 924; People v
Madera, 100 A.D.3d 1111, 1112; People v Kruger,
88 A.D.3d 1169, 1170).
The
Supreme Court providently exercised its discretion in denying
the defendant's application for a downward departure from
the presumptive risk assessment level. In determining a
defendant's risk level, a downward departure from the
presumptive risk level generally is warranted only if there
exists a mitigating circumstance "as a matter of law, of
a kind or to a degree not adequately taken into account by
the guidelines" (People v Gillotti, 23 N.Y.3d
841, 861; see Guidelines at 4; People v
Watson, 95 A.D.3d 978, 979).
The
fact that the defendant was related to the victims was
adequately taken into account by the Guidelines, as the
defendant was assessed 0 points for risk factor 7
(relationship between offender and victim) under the risk
assessment instrument (see People v Alexander, 144
A.D.3d 1008; People v DeDona,102 A.D.3d 58, 71;
People v Riverso,96 A.D.3d 1533, 1534; People v
Walker,47 A.D.3d 692, 694). The defendant has otherwise
failed to set forth any mitigating factors warranting a
downward departure. Contrary to his contention, he failed to
establish that his deportation was, "as a matter of law,
an appropriate mitigating factor" (People v
Wyatt,89 A.D.3d 112, 128; see People v Jara,150 A.D.3d 1159; People v Garcia,144 A.D.3d 650,
651; People v Rubi,132 A.D.3d 650; Peo ...