People v. Davila

171 N.Y.S.3d 901 (Mem)

PEOPLE of State of New York, respondent,

v.Danny DAVILA, appellant.

2020–07550

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

Submitted—April 8, 2022

August 17, 2022

Mark Diamond, New York, NY, for appellant.

Miriam E. Rocah, District Attorney, White Plains, NY (William C. Milaccio and Brian R. Pouliot of counsel), for respondent.

VALERIE BRATHWAITE NELSON, J.P., ROBERT J. MILLER, PAUL WOOTEN, JOSEPH A. ZAYAS, JJ.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Westchester County (Susan Cacace, J.), dated August 20, 2020, 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 pleaded guilty in federal court to attempting to engage in illicit sexual conduct in foreign places in violation of 18 USC § 2423(c) and (e) in connection with an incident in which he attempted to solicit sex from an undercover agent in Cambodia whom he believed to be 17 years old, and arranged to have the undercover agent procure an 8–year–old child for sex with the defendant. Following a hearing to determine the defendant's risk level under the Sex Offender Registration Act (Correction Law art 6–C; hereinafter SORA), the Supreme Court assessed the defendant 85 points, granted the People's application for an upward departure, and designated the defendant a level three sex offender. The defendant appeals.

The Supreme Court properly assessed 20 points under risk factor 3 for two victims, 30 points under risk factor 5 for the age of a victim being 10 or less, and 20 points under risk factor 7 for having a stranger relationship with the victim (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 10–12 [2006] [hereinafter Guidelines]). Contrary to the defendant's contention, "the risk factors at issue here—3, 5, and 7—do not require actual, physical sexual contact between the offender and victim" ( People v. DeDona, 102 A.D.3d 58, 63, 954 N.Y.S.2d 541 ; see People v. James, 165 A.D.3d 850, 850–851, 84 N.Y.S.3d 561 ). Further, the facts that the undercover agent was in reality an adult and that the eight-year-old child was fictitious do not negate the assessment of these points (see People v. Kent, 175 A.D.3d 561, 563, 105 N.Y.S.3d 108 ; People v. Wise, 127 A.D.3d 834, 6 N.Y.S.3d 292 ; People v. DeDona, 102 A.D.3d at 65–66, 954 N.Y.S.2d 541 ; see also People v. McKenna, 186 A.D.3d 1542, 130 N.Y.S.3d 86 ; People v. Harris, 172 A.D.3d 922, 100 N.Y.S.3d 295 ).

The Supreme Court also properly assessed 10 points under risk factor 12 for the defendant's failure to accept responsibility for his conduct (see Guidelines at 15–16). The People established by clear and convincing evidence (see Correction Law § 168–n[3] ) that the defendant's most recent credible statements demonstrated that he minimized his culpability and denied responsibility for his sexual misconduct, notwithstanding that he had participated in a sex offender treatment program (see People v. Gonzalez , 194 A.D.3d 1083, 148 N.Y.S.3d 497 ; People v. James , 99 A.D.3d 775, 775–776, 951 N.Y.S.2d 676 ; People v. Perry , 85 A.D.3d 890, 925 N.Y.S.2d 345 ). The defendant's contention that the federal court's determination that he had accepted full responsibility for his actions constitutes collateral estoppel on the issue is unpreserved for appellate review and, in any event, without merit (see People v. Aguilera , 82 N.Y.2d 23, 29–30, 603 N.Y.S.2d 392, 623 N.E.2d 519 ).

The Supreme Court providently exercised its discretion in granting the People's application for an upward departure. The People demonstrated, by clear and convincing evidence (see Correction Law § 168–n[3] ; People v. Mingo, 12 N.Y.3d 563, 574, 576–577, 883 N.Y.S.2d 154, 910 N.E.2d 983 ), the existence of aggravating factors not adequately taken into account by the Guidelines that tended to establish a higher likelihood...