Opinion
11-18-2015
PEOPLE of State of New York, respondent, v. Steven NOWICKI, appellant.
Gerald Zuckerman, Croton–on–Hudson, N.Y., for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Laurie Sapakoff and Steven Bender of counsel), for respondent.
Gerald Zuckerman, Croton–on–Hudson, N.Y., for appellant.
Janet DiFiore, District Attorney, White Plains, N.Y. (Laurie Sapakoff and Steven Bender of counsel), for respondent.
Opinion
Appeal by the defendant from an order of the County Court, Westchester County (Cacace, J.), entered November 1, 2013, 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's contention that the Supreme Court deprived him of due process by using a Risk Assessment Instrument in determining his risk level under the Sex Offender Registration Act (Correction Law art. 6–C) is without merit (see People v. Reede, 113 A.D.3d 663, 664, 978 N.Y.S.2d 683; People v. Guitard, 57 A.D.3d 751, 871 N.Y.S.2d 205, lv. granted 8 N.Y.3d 816, 839 N.Y.S.2d 455, 870 N.E.2d 696, affd. 10 N.Y.3d 801, 856 N.Y.S.2d 557, 886 N.E.2d 179; People v. Washington, 47 A.D.3d 908, 909, 849 N.Y.S.2d 442; People v. Windham, 37 A.D.3d 571, 831 N.Y.S.2d 193; People v. Flowers, 35 A.D.3d 690, 690–691, 826 N.Y.S.2d 687). Contrary to the defendant's further contention, the assessment of points against him under risk factor 12, for failure to accept responsibility, did not violate his Fifth Amendment privilege against self-incrimination (see People v. Palladino, 46 A.D.3d 864, 850 N.Y.S.2d 468).
The defendant was properly assessed points under risk factor 9 for his conviction of a prior, nonviolent felony, and risk factor 10, for the recency of that prior felony. The People established the facts underlying the assessment of those points by clear and convincing evidence, consisting of the case summary produced by the Board of Examiners of Sex Offenders (see People v. James, 99 A.D.3d 775, 951 N.Y.S.2d 676; see generally People v. Mingo, 12 N.Y.3d 563, 573, 883 N.Y.S.2d 154, 910 N.E.2d 983).
The defendant failed to demonstrate the existence of a mitigating factor of a kind or to a degree not otherwise taken into account by the guidelines that warranted a downward departure from his presumptive risk level designation (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]; People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1; People v. Wyatt, 89 A.D.3d 112, 931 N.Y.S.2d 85).
The defendant's remaining contentions are without merit.
HALL, J.P., ROMAN, SGROI and HINDS–RADIX, JJ., concur.