People v. Morrison

156 A.D.3d 831

67 N.Y.S.3d 246

PEOPLE of State of New York, respondent,

v.Orlando MORRISON, appellant.

2015–09401

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

Submitted—October 13, 2017

December 20, 2017

Seymour W. James, Jr., New York, N.Y. (Elizabeth L. Isaacs of counsel), for appellant.

Eric Gonzalez, Acting District Attorney, Brooklyn, N.Y. (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, 40 N.Y.S.3d 473; People v. Acevedo, 124 A.D.3d 500, 998 N.Y.S.2d 621 ; People v. Richardson, 101 A.D.3d 837, 838, 957 N.Y.S.2d 158 ; People v. Duff, 96 A.D.3d 1031, 946 N.Y.S.2d 891 ; People v. Howell, 82 A.D.3d 857, 918 N.Y.S.2d 364 ).

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, 35 N.Y.S.3d 377 ; People v. Williams, 55 A.D.3d 708, 709, 864 N.Y.S.2d 781 ; People v. Awalt, 17 A.D.3d 336, 336, 791 N.Y.S.2d 839 ). 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, 42 N.Y.S.3d 841; People v. Madera, 100 A.D.3d 1111, 1112, 953 N.Y.S.2d 385 ; People v. Kruger, 88 A.D.3d 1169, 1170, 931 N.Y.S.2d 753 ).

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, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; see Guidelines at 4; People v. Watson, 95 A.D.3d 978, 979, 944 N.Y.S.2d 584 ).

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, 41 N.Y.S.3d 746 ; People v. DeDona, 102 A.D.3d 58, 71, 954 N.Y.S.2d 541 ; People v. Riverso, 96 A.D.3d 1533, 1534, 947 N.Y.S.2d 250 ; People v. Walker, 47 A.D.3d 692, 694, 850 N.Y.S.2d 494 ). 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, 931 N.Y.S.2d 85 ; see People v. Jara, 150 A.D.3d 1159, 52 N.Y.S.3d 663; People v. Garcia, 144 A.D.3d 650, 651, 39 N.Y.S.3d 821; People v. Rubi, 132 A.D.3d 650, 17 N.Y.S.3d 314 ; People v. Leshchenko, 127 A.D.3d 833, 4 N.Y.S.3d 903 ; People v. Ciudadreal, 125 A.D.3d...