People v. D'Amico

212 A.D.3d 664

182 N.Y.S.3d 182

PEOPLE of State of New York, respondent,

v.Bruce D'AMICO, appellant.

2019–14094

Supreme Court, Appellate Division, Second Department, New York.

Submitted—December 13, 2022

January 11, 2023

Michael Siff, Kew Gardens, NY, for appellant.

Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Nancy Fitzpatrick Talcott of counsel; Tess O'Leary on the brief), for respondent.

FRANCESCA E. CONNOLLY, J.P., PAUL WOOTEN, JOSEPH A. ZAYAS, BARRY E. WARHIT, JJ.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Queens County (Steven W. Paynter, J.), dated November 19, 2019, 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 2013, the defendant was convicted in the United States District Court for the District of Connecticut of the federal crime of sex trafficking of children under 18 USC § 1591(a)(1) and (b)(2), and was sentenced to a term of imprisonment of 10 years. Upon the defendant's relocation to New York following his release from federal prison in November 2018, the Board of Examiners of Sex Offenders (hereinafter the Board) determined, pursuant to Correction Law § 168–k(2), that the defendant was required to register as a sex offender in New York pursuant to the Sex Offender Registration Act (Correction Law article 6–C; hereinafter SORA). The Board concluded that registration was required because, under Correction Law § 168–a(2)(d)(i), the federal crime of which the defendant was convicted contained all of the essential elements of a New York sex offense, namely promoting prostitution in the second degree, in violation of Penal Law § 230.30(2). The Board prepared a risk assessment instrument in which it assessed the defendant 95 points, resulting in a presumptive risk level of two.

At the SORA hearing, the defendant challenged the requirement that he register as a sex offender in New York, contending that promoting prostitution in the second degree under Penal Law § 230.30 did not contain all of the essential elements of 18 USC § 1591 at the time of his federal conviction. The defendant also opposed the Board's assessment of 20 points under risk factor 4 and 20 points under risk factor 7. The Supreme Court rejected the defendant's contentions, assessed the defendant 95 points, and designated him a level two sex offender.

Under SORA, a person convicted of an offense in a foreign jurisdiction is required to register in New York when the foreign offense contains "all of the essential elements" of a New York offense that subjects an offender to SORA registration ( Correction Law § 168–a[2][d][i] ; see North v. Board of Examiners of Sex Offenders, 8 N.Y.3d 745, 748–749, 840 N.Y.S.2d 307, 871 N.E.2d 1133 ). Here, the defendant's challenge to the Board's determination that he was required to register as a sex offender in New York was properly rejected by the Supreme Court because Penal Law § 230.30(2) contains the same essential elements as 18 USC § 1591(a)(1) and (b)(2) (see North v. Board of Examiners of Sex Offenders, 8 N.Y.3d at 749, 840 N.Y.S.2d 307, 871 N.E.2d 1133 ). The defendant's further contention regarding an amendment made to Penal Law § 230.30(2) after his federal conviction, which, in essence, is based on the prohibition against ex post facto laws, is without merit (see People ex rel. Rivera v. Superintendent, Woodbourne Corr. Facility, 200 A.D.3d 1370, 1371, 160 N.Y.S.3d 411, lv granted, 38 N.Y.3d 1029, 169 N.Y.S.3d 247, 189 N.E.3d 354 ; People v. Parilla, 109 A.D.3d 20, 23–29, 970 N.Y.S.2d 497 ; see also People v. Buss, 11 N.Y.3d 553, 558, 872 N.Y.S.2d 413, 900 N.E.2d 964 ).

In establishing an offender's risk level designation under SORA, the People have the burden of establishing the facts supporting the...