Opinion
2012-11-21
PEOPLE of State of New York, respondent, v. Santos VELEZ, appellant.
Kent V. Moston, Hempstead, N.Y. (Jeremy L. Goldberg and Argun M. Ulgen of counsel), for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Yael V. Levy and Jason R. Richards of counsel), for respondent.
Kent V. Moston, Hempstead, N.Y. (Jeremy L. Goldberg and Argun M. Ulgen of counsel), for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Yael V. Levy and Jason R. Richards of counsel), for respondent.
PETER B. SKELOS, J.P., THOMAS A. DICKERSON, L. PRISCILLA HALL, and SHERI S. ROMAN, JJ.
Appeal by the defendant from an order of the Supreme Court, Nassau County (McCormack, J.), dated June 4, 2009, which, after a hearing to redetermine his sex offender risk level pursuant to the stipulation of settlement in Doe v. Pataki, 3 F.Supp.2d 456, designated him a level two sexually violent sex offender pursuant to Correction Law article 6–C.
ORDERED that the order is modified, on the law, by deleting therefrom the words “sexually violent”; as so modified, the order is affirmed, without costs or disbursements.
Contrary to the defendant's contention, at his Sex Offender Registration Act ( see Correction Law article 6–C) redetermination hearing held pursuant to the stipulation of settlement reached in Doe v. Pataki, 3 F.Supp.2d 456, the Supreme Court properly assessed 10 points against him under risk factor 12 of the Sex Offender Registration Act Guidelines ( see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary [2006] ), as the People established, by clear and convincing evidence, that he did not genuinely accept responsibility for the acts underlying his conviction of sexual abuse in the first degree ( see People v. Thompson, 95 A.D.3d 977, 978, 943 N.Y.S.2d 771;People v. Fuller, 83 A.D.3d 1025, 1025–1026, 922 N.Y.S.2d 444;People v. Smith, 78 A.D.3d 917, 918, 911 N.Y.S.2d 451).
Furthermore, under the particular circumstances of this case, the Supreme Court properly assessed 10 points under the “conduct while confined/supervised” risk factor, based on evidence of the defendant's unsatisfactory conduct while in confinement for an offense committed subsequent to his confinement/supervision on his conviction of sexual abuse in the first degree ( see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 16 [2006]; cf. People v. Wilbert, 35 A.D.3d 1220, 1221, 825 N.Y.S.2d 884). The defendant's contention relating to the five points assessed under risk factor 9 (number and nature of prior crimes) is unpreserved for appellate review ( see People v. Teagle, 64 A.D.3d 549, 550, 884 N.Y.S.2d 80;People v. Kelly, 46 A.D.3d 790, 791, 849 N.Y.S.2d 81) and, in any event, without merit.
The Supreme Court properly determined that the defendant was not entitled to a downward departure from his presumptive risk level assessment ( see People v. Palmer, 91 A.D.3d 618, 935 N.Y.S.2d 894;People v. Reynolds, 90 A.D.3d 630, 631, 934 N.Y.S.2d 448).
However, as the People correctly concede, the Supreme Court apparently committed a clerical error by designating the defendant a sexually violent offender, as the Doe v. Pataki stipulation provides that the redetermination court “shall neither consider nor render a determination on the question of whether the [defendant] shall be designated a ... sexually violent offender.” Thus, the order must be modified by deleting therefrom the words “sexually violent.”
The defendant's remaining contention is unpreserved for appellate review and, in any event, without merit.