People v. Ivey

203 N.Y.S.3d 355

PEOPLE of State of New York, respondent,

v.Robert IVEY, appellant.

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

Submitted—October 27, 2023

January 10, 2024

Joseph A. Hanshe, Sayville, NY, for appellant.

Raymond A. Tierney, District Attorney, Riverhead, NY (Edward A. Bannan and Lauren Tan of counsel), for respondent.

FRANCESCA E. CONNOLLY, J.P., ROBERT J. MILLER, LARA J: GENOVESI, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Suffolk County (Chris Ann Kelley, J.), dated October 6, 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.

In this proceeding pursuant to the Sex Offender Registration Act (Correction Law art 6–C), the Supreme Court, after a hearing, designated the defendant a level three sex offender based upon the assessment of a total of 110 points (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 3–5 [2006] [hereinafter Guidelines]). On appeal, the defendant challenges the assessment of points under risk factor 3 (number of victims) and risk factor 7 (relationship with victim), and contends that he is entitled to a downward departure from his presumptive risk level.

[1] Contrary to the defendant’s contention, the Supreme Court properly assessed points under risk factors 3 and 7, since the People established by clear and convincing evidence that the child pornography possessed by the defendant depicted images of at least two child victims, and that the children in the images were strangers to the defendant (see People v. Gillotti, 23 N.Y.3d 841, 859–860, 994 N.Y.S.2d 1, 18 N.E.3d 701; People v: Titone, 209 A.D.3d 888, 889, 176 N.Y.S.3d 296; People v. Smith, 187 A.D.3d 1228, 1229, 131 N.Y.S.3d 572; People v. Bolan, 186 A.D.3d 1273, 1274, 127 N.Y.S.3d 891).

[2, 3] Since the defendant did not request a downward departure from his presumptive risk level in the Supreme Court, his contentions on appeal regarding a downward departure are unpreserved for appellate review (see People v. Rodriguez, 194 A.D.3d 864, 143 N.Y.S.3d 607; People v. Eason, 192 A.D.3d 925, 926, 140 N.Y.S.3d 731; People v. Yglesias, 180 A.D.3d 821, 822–823, 120 N.Y.S.3d 169). In any event, the defendant did not satisfy his burden of "(1) identifying, as a matter of law, an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence" (People v. Wyatt, 89 A.D.3d 112, 128, 931 N.Y.S.2d 85; see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701; People v. Fernandez, 219 A.D.3d 760, 763, 194 N.Y.S.3d 557; People v. Barry, 213 A.D.3d 779, 781, 182 N.Y.S.3d 758; People v. Morales, 192 A.D.3d 930, 931, 140 N.Y.S.3d 720; see also Guidelines at 4).

[4] Furthermore, defense counsel was not ineffective for failing to request a downward departure (see People v. Capasso, 203 A.D.3d 1085, 162 N.Y.S.3d 780). The record demonstrates that such an argument would have had little or no chance of success, and there is no reasonable probability that had defense counsel requested a downward departure, the result of the proceeding would have been...