Opinion
622 KA 19-02349
08-26-2021
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. KAVYIA A. SPENCER, DEFENDANT-APPELLANT. (APPEAL NO. 1.)
NICHOLAS B. ROBINSON, PUBLIC DEFENDER, LOCKPORT (THERESA L. PREZIOSO OF COUNSEL), FOR DEFENDANT-APPELLANT. BRIAN D. SEAMAN, DISTRICT ATTORNEY, LOCKPORT (LAURA T. JORDAN OF COUNSEL), FOR RESPONDENT.
NICHOLAS B. ROBINSON, PUBLIC DEFENDER, LOCKPORT (THERESA L. PREZIOSO OF COUNSEL), FOR DEFENDANT-APPELLANT.
BRIAN D. SEAMAN, DISTRICT ATTORNEY, LOCKPORT (LAURA T. JORDAN OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
Appeal from a judgment of the Niagara County Court (Sara Sheldon, J.), rendered October 7, 2019. The judgment convicted defendant upon his plea of guilty of rape in the third degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals, in appeal No. 1, from a judgment convicting him upon his plea of guilty of rape in the third degree (Penal Law § 130.25 [1]). In appeal No. 2, he appeals from an order that determined him to be a level two risk pursuant to the Sex Offender Registration Act ([SORA] Correction Law § 168 et seq.). We affirm in each appeal.
In appeal No. 1, defendant contends that his waiver of the right to appeal is invalid and that his sentence is excessive. Initially, we note that, contrary to the People's assertion, "[i]t is well settled that this Court's sentence-review power may be exercised, if the interest of justice warrants, without deference to the sentencing court..., and that we may substitute our own discretion for that of a trial court which has not abused its discretion in the imposition of a sentence" (People v Colon, 192 A.D.3d 1567, 1570 [4th Dept 2021], lv denied 37 N.Y.3d 955 [2021] [internal quotation marks omitted]; see People v Reid, 173 A.D.3d 1663, 1666 [4th Dept 2019]; People v Johnson, 136 A.D.3d 1417, 1418 [4th Dept 2016], lv denied 27 N.Y.3d 1134 [2016]). Nevertheless, "[e]ven assuming, arguendo, that defendant's waiver of the right to appeal is invalid and thus does not preclude our review of [his] challenge to the severity of [his] sentence" (People v Baker, 158 A.D.3d 1296, 1296 [4th Dept 2018], lv denied 31 N.Y.3d 1011 [2018]; see People v Bishop, 192 A.D.3d 1504, 1504 [4th Dept 2021], lv denied 36 N.Y.3d 1118 [2021]; People v Alls, 187 A.D.3d 1515, 1515 [4th Dept 2020]), we conclude that the sentence is not unduly harsh or severe. Furthermore, again assuming, arguendo, that defendant's waiver of the right to appeal is invalid and thus does not preclude our review of his contentions concerning the denial of his request for youthful offender status, after applying the nine Cruickshank factors (People v Cruickshank, 105 A.D.2d 325, 334 [3d Dept 1985], affd 67 N.Y.2d 625 [1986]; see People v Z.H., 192 A.D.3d 55, 58-61 [4th Dept 2020]; People v Keith B.J., 158 A.D.3d 1160, 1160 [4th Dept 2018]), we conclude that County Court did not abuse its discretion in refusing to grant defendant youthful offender status (see generally People v Macon, 169 A.D.3d 1439, 1440 [4th Dept 2019], lv denied 33 N.Y.3d 978 [2019]), and we decline to exercise our discretion in the interest of justice to adjudicate defendant a youthful offender (see People v Kocher, 116 A.D.3d 1301, 1301-1303 [3d Dept 2014]; see generally People v Rice, 175 A.D.3d 1826, 1826 [4th Dept 2019], lv denied 34 N.Y.3d 1132 [2020]).
In appeal No. 2, defendant contends that the court erred in assessing points under risk factors 11 and 13. We reject that contention. With respect to risk factor 11, a SORA court may assess 15 points if the defendant "has a substance abuse history or was abusing drugs... or alcohol at the time of the offense" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 15 [2006] [Guidelines]). Here, the People established, by the requisite clear and convincing evidence (see People v Mingo, 12 N.Y.3d 563, 571 [2009]; see generally Correction Law § 168-n [3]), that defendant was intoxicated at the time of the crime and that he admittedly was using alcohol to excess during the college semester during which the crime occurred. Thus, the court properly assessed 15 points under risk factor 11 (see People v McClendon, 175 A.D.3d 1329, 1330 [2d Dept 2019], lv denied 34 N.Y.3d 910 [2020]; see generally People v Williamson, 181 A.D.3d 1100, 1101 [3d Dept 2020]).
Furthermore, contrary to defendant's contention, risk factor 13, which concerns conduct while confined or under supervision (see Guidelines at 16), permits the assessment of points for, insofar as relevant here, "defendant's behavior while being supervised on probation" (People v Miller, 186 A.D.3d 1095, 1097 [4th Dept 2020], lv denied 36 N.Y.3d 903 [2020]; see People v Young, 108 A.D.3d 1232, 1233 [4th Dept 2013], lv denied 22 N.Y.3d 853 [2013], rearg denied 22 N.Y.3d 1036 [2013]). Here, the People established by clear and convincing evidence that defendant's conduct while on interim probation was unsatisfactory.