People v. Melendez

210 A.D.3d 1121

179 N.Y.S.3d 311

PEOPLE of State of New York, respondent,

v.Albert MELENDEZ, appellant.

2020–07450

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

Submitted—October 26, 2022

November 30, 2022

Laurette D. Mulry, Riverhead, NY (Anju Alexander of counsel), for appellant.

Raymond A. Tierney, District Attorney, Riverhead, NY (Jonathan D. Estreich and Lauren Tan of counsel), for respondent.

VALERIE BRATHWAITE NELSON, J.P., REINALDO E. RIVERA, JOSEPH J. MALTESE, LARA J. GENOVESI, JJ.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Suffolk County (Richard Ambro, J.), dated March 18, 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 May 1985, the defendant was convicted, upon a jury verdict, of two counts of rape in the first degree, two counts of criminal sexual act in the first degree, and kidnapping in the second degree. On March 18, 2020, the defendant appeared before the Supreme Court for a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6–C; hereinafter SORA), at which time the court assessed the defendant 125 points, resulting in a presumptive risk level of three, denied the defendant's application for a downward departure from the presumptive risk level, and designated the defendant a level three sex offender.

In establishing a sex offender's appropriate risk level under SORA, the People have "the burden of proving the facts supporting the determinations sought by clear and convincing evidence" ( Correction Law § 168–n[3] ; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5 [2006][hereinafter Guidelines]; People v. Wyatt, 89 A.D.3d 112, 117–118, 931 N.Y.S.2d 85 ). Here, the Supreme Court properly assessed the defendant 30 points under risk factor 1 (use of violence). The People established that the defendant committed the offense while armed with a dangerous instrument by clear and convincing evidence in the form of the victim's grand jury testimony that the defendant sexually assaulted her, the codefendant pointed a gun at her, and the codefendant sexually assaulted her while the defendant pointed the same gun at her (see People v. Burrowes, 177 A.D.3d 1005, 1006, 113 N.Y.S.3d 264 ).

The defendant's contention that the Supreme Court improperly assessed 15 points under risk factor 11 is unpreserved for appellate review, since he did not object to the assessment of these points at the SORA hearing (see People v. Bethel, 165 A.D.3d 712, 713, 85 N.Y.S.3d 96 ; People v. Velez, 100 A.D.3d 847, 847–848, 954 N.Y.S.2d 192 ). In any event, his contention is without merit.

Contrary to the defendant's contention, he failed to establish his entitlement to a downward departure to risk level two. A defendant seeking a downward departure from the presumptive risk level has the initial 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 at 128, 931 N.Y.S.2d 85 ; see People v. Jimenez, 178 A.D.3d 1099, 1100, 115 N.Y.S.3d 86 ; see also Guidelines at 4). Here, the defendant's conduct while incarcerated was adequately taken into account by the Guidelines (see generally People v. Joe, 203 A.D.3d 1187, 163 N.Y.S.3d 453...