Opinion
No. 2023-51008 No. 570011/20
09-26-2023
The People of the State of New York, Respondent, v. Donkeith Hamilton T/N Levine Hamilton, Defendant-Appellant.
Unpublished Opinion
PRESENT: Hagler, P.J., Brigantti, James, JJ.
PER CURIAM.
Defendant appeals from an order of the Criminal Court of the City of New York, New York County (Phyllis Chu, J.), entered December 4, 2019, which, after a hearing, adjudicated him a level three sex offender, pursuant to the Sex Offender Registration Act (Correction Law art. 6-C).
Order (Phyllis Chu, J.), entered December 4, 2019, affirmed.
The record supports the court's discretionary upward departure to level three. Clear and convincing evidence established aggravating factors not adequately taken into account by the risk assessment instrument (see generally People v Gillotti, 23 N.Y.3d 841, 861-862 [2014]), "which assessed points based on the mere existence of certain prior convictions but did not sufficiently reflect the egregious pattern and risk of recidivism reflected in defendant's criminal background" (People v Carmona, 212 A.D.3d 537, 537 [2023], lv denied 39 N.Y.3d 913 [2023]; see People v Taylor, 154 A.D.3d 524 [2017], lv denied 30 N.Y.3d 909 [2018]). Here, defendant committed the underlying crime after he had already been convicted twice of the same type of sex crime (see People v Sims, 215 A.D.3d 496, 497 [2023]; People v Roman, 143 A.D.3d 476 [2016], lv denied 28 N.Y.3d 912 [2017]) and he had multiple public lewdness convictions both prior and subsequent to his arrest in the underlying matter (see People v Richardson, 209 A.D.3d 1068, 1070 [2022], lv denied 39 N.Y.3d 908 [2023]). Although public lewdness offenses "are not classified as sex crimes for purposes of scoring on the risk assessment instrument, they have a sexual component [and] [t]he commission of these offenses is an aggravating factor which tends to establish a higher likelihood of reoffense or danger to the community" (People v LaPorte, 119 A.D.3d 758 [2014], lv denied 24 N.Y.3d 906 [2014] [internal citations and quotation marks omitted]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.