Opinion
2011-11301
06-24-2015
PEOPLE of State of New York, respondent, v. Jeffrey PINCKNEY, appellant.
Seymour W. James, Jr., New York, N.Y. (Lorraine Maddalo of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy, and Daniel Berman of counsel), for respondent.
Seymour W. James, Jr., New York, N.Y. (Lorraine Maddalo of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy, and Daniel Berman of counsel), for respondent.
RUTH C. BALKIN, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.
Opinion Appeal by the defendant from an order of the Supreme Court, Kings County (J. Goldberg, J.), dated November 1, 2011, 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 Supreme Court properly designated the defendant a level three sex offender. Contrary to the defendant's contention, the court properly assessed 10 points under risk factor 10 of the Sex Offender Registration Act Guidelines (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary [2006] [hereinafter SORA Guidelines] ), based on the recency of a prior felony committed by him. The People established, by clear and convincing evidence, that the defendant had been at liberty for a period of less than three years between the time of his prior felony conviction on December 18, 1989, and the instant offense, which occurred on August 19, 1992 (see People v. James, 99 A.D.3d 775, 951 N.Y.S.2d 676 ; People v. Dunn, 82 A.D.3d 856, 918 N.Y.S.2d 358 ; People v. Hyson, 27 A.D.3d 919, 920, 811 N.Y.S.2d 469 ; cf. People v. Neuer, 86 A.D.3d 926, 926 N.Y.S.2d 793 ). Furthermore, the court appropriately assessed 15 points under risk factor 11, as the People established, by clear and convincing evidence, that the defendant had a history of drug abuse (see People v. Palmer, 20 N.Y.3d 373, 377–378, 960 N.Y.S.2d 719, 984 N.E.2d 917 ; People v. Johnson, 109 A.D.3d 972, 971 N.Y.S.2d 347 ; People v. Finizio, 100 A.D.3d 977, 978, 954 N.Y.S.2d 636 ; People v. Harris, 93 A.D.3d 704, 940 N.Y.S.2d 127 ).
In addition, the Supreme Court properly assessed 15 points under both risk factor 12 and risk factor 14 (see People v. Pratt, 61 A.D.3d 836, 876 N.Y.S.2d 870 ; People v. Orengo, 40 A.D.3d 609, 836 N.Y.S.2d 202 ). The People presented clear and convincing evidence that the defendant refused to participate in sex offender treatment while incarcerated, justifying the assessment of 15 points under risk factor 12 (see People v. Grigg, 112 A.D.3d 802, 977 N.Y.S.2d 84 ; People v. Barclay, 107 A.D.3d 868, 967 N.Y.S.2d 422 ). The defendant was properly assessed 15 points under risk factor 14 for being released into the community without supervision (see SORA Guidelines at 17; People v. Stapleton, 125 A.D.3d 951, 952, 5 N.Y.S.3d 160 ; People v. Fryer, 101 A.D.3d 835, 955 N.Y.S.2d 407 ). Contrary to the defendant's contention, the assessment of points under both risk factor 12 and risk factor 14 did not amount to impermissible “double counting” (People v. Ologbonjaiye, 109 A.D.3d 804, 805, 971 N.Y.S.2d 126 ; see People v. Johnson, 118 A.D.3d 684, 685, 986 N.Y.S.2d 860 ).
The Supreme Court properly denied the defendant's request for a downward departure from his presumptive risk level designation, as the record does not reflect the existence of special circumstances warranting a downward departure (see People v. Johnson, 118 A.D.3d at 685, 986 N.Y.S.2d 860 ; see generally People v. Wyatt, 89 A.D.3d 112, 118–122, 931 N.Y.S.2d 85 ).