Opinion
2013-02046
08-12-2015
PEOPLE of State of New York, respondent, v. Calvin BROWN, appellant.
Lynn W.L. Fahey, New York, N.Y. (Jenin Younes of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy, and Anthea H. Bruffee of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Jenin Younes of counsel), for appellant.Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy, and Anthea H. Bruffee of counsel), for respondent.
Opinion Appeal by the defendant from an order of the Supreme Court, Kings County (DiMango, J.), dated January 14, 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.
Contrary to the defendant's contention, the People proved by clear and convincing evidence that he was properly assessed points under risk factor 6, based on the victim's mental disability (see People v. Leeks, 43 A.D.3d 1251, 842 N.Y.S.2d 613 ; cf. People v. Green, 104 A.D.3d 1222, 960 N.Y.S.2d 582 ). In addition, the defendant's contention that the assessment of points under risk factors 5 (age of victim) and 6 constituted improper double counting is unpreserved for appellate review (see People v. Jones, 101 A.D.3d 836, 954 N.Y.S.2d 918 ; People v. Fredlund, 38 A.D.3d 636, 832 N.Y.S.2d 592 ) and, in any event, without merit (see People v. Caban, 61 A.D.3d 834, 835, 877 N.Y.S.2d 403 ). The Supreme Court properly assessed points under risk factor 12 based upon the defendant's removal from treatment programs for disciplinary reasons while incarcerated (see People v. DeCastro, 101 A.D.3d 693, 954 N.Y.S.2d 496 ; People v. Peana, 68 A.D.3d 737, 888 N.Y.S.2d 915 ; People v. Orengo, 40 A.D.3d 609, 610, 836 N.Y.S.2d 202 ).
The defendant's remaining contention is without merit.
Accordingly, the Supreme Court properly designated the defendant a level three sex offender (see People v. Grubbs, 107 A.D.3d 771, 967 N.Y.S.2d 112 ; People v. Lacewell, 103 A.D.3d 784, 962 N.Y.S.2d 193 ).
MASTRO, J.P., AUSTIN, ROMAN and SGROI, JJ., concur.