Opinion
10-06-2022
The People of the State of New York, Respondent, v. Damien Powell, Defendant-Appellant.
Unpublished Opinion
PRESENT: Brigantti, J.P., Tisch, Michael, JJ.
PER CURIAM.
Defendant appeals from an order of the Criminal Court of the City of New York, New York County (Felicia A. Mennin, J.), entered July 28, 2016, which, after a hearing, adjudicated him a level three sex offender under the Sex Offender Registration Act ("SORA") (Correction Law Art. 6-C).
Order (Felicia A. Mennin, J.), entered July 28, 2016, affirmed.
The record supports the level three sex offender adjudication. The SORA court properly assessed 15 points under risk factor 11 for defendant's history of drug abuse based on defendant's own admissions about his long and extensive history of substance abuse, including his regular use of marijuana and K2 since the age of fourteen. "In making that finding, the court appropriately considered the report of a CPL article 730 examination prepared in connection with the underlying conviction, including statements made by defendant during his examination" (People v Buford, 56 A.D.3d 381 [2008]; see People v Williams, 96 A.D.3d 421, 422 [2012], lv denied 19 N.Y.3d 813 [2012]). Contrary to defendant's contention, since SORA proceedings are civil in nature (see People v Mingo, 12 N.Y.3d 563, 571 [2009]), the use of his statements was not prohibited by CPL 730.20(6).
As an alternative holding, the record also supports the SORA court's alternative finding that defendant should be adjudicated a level three sex offender based upon a presumptive override for a recent threat to reoffend by committing a sexual or violent crime. Just six days after being released from prison for the underlying offense, defendant committed a new and very serious crime, for which he ultimately pleaded guilty to attempted rape in the first degree (see People v Johnson, 44 A.D.3d 571 [2007], lv denied 10 N.Y.3d 701 [2008]).
Defendant's contention that he should have received a downward departure is unpreserved (see People v Gillotti, 23 N.Y.3d 841, 861 n 5 [2014]; People v Johnson, 130 A.D.3d 454 [2015], lv denied 26 N.Y.3d 908 [2015]). In any event, we find no basis for such a departure.
All concur