Opinion
2019–06820
08-24-2022
PEOPLE of State of New York, respondent, v. James WILLIAMS, appellant.
Twyla Carter, New York, NY (Steven R. Berko of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and William H. Branigan of counsel; Victoria Randall on the brief), for respondent.
Twyla Carter, New York, NY (Steven R. Berko of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and William H. Branigan of counsel; Victoria Randall on the brief), for respondent.
MARK C. DILLON, J.P., FRANCESCA E. CONNOLLY, SHERI S. ROMAN, JOSEPH J. MALTESE, JJ.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Queens County (Richard L. Buchter, J.), dated May 30, 2019, 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.
On February 11, 2015, the defendant was convicted, upon his plea of guilty, of attempted assault in the second degree ( Penal Law §§ 110.00, 120.05[6] ) and rape in the third degree (id. § 130.25[3]). After a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6–C; hereinafter SORA), the Supreme Court assessed the defendant 115 points, presumptively placing him within the level three designation, denied his request for a downward departure from his presumptive risk level, and designated him a level three sex offender. The defendant appeals.
Contrary to the defendant's contention, the Supreme Court's assessment of 10 points under risk factor 12 on the ground that the defendant had not accepted responsibility for his crime was supported by clear and convincing evidence (see People v. Benitez, 140 A.D.3d 1140, 1140–1141, 35 N.Y.S.3d 377 ; People v. Valdez, 123 A.D.3d 785, 785–786, 996 N.Y.S.2d 727 ; People v. Mosley, 106 A.D.3d 1067, 1068, 965 N.Y.S.2d 632 ; People v. Smith, 78 A.D.3d 917, 918–919, 911 N.Y.S.2d 451 ).
The defendant's contention that a downward departure was warranted based on the fact he has not been arrested for, or convicted of, another sex offense since his release from custody is without merit. "Although lengthy periods of time during which the defendant has been at liberty after the offense are not taken into account by the Guidelines or the Risk Assessment Instrument [hereinafter RAI]" ( People v. Sprinkler, 162 A.D.3d 802, 803, 79 N.Y.S.3d 232 ; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter Guidelines]), the defendant, who had only been at liberty for approximately three years at the time of the SORA hearing, failed to establish by a preponderance of the evidence that this short period of time at liberty without reoffense demonstrated that the RAI overstated his risk of reoffense (see People v. Williams, 204 A.D.3d 710, 163 N.Y.S.3d 861 ). Moreover, the defendant's contention that he was assessed a points total near the low range of the level three parameters, by itself, does not constitute grounds for a downward departure (see People v. Nicholson, 195 A.D.3d 758, 759, 145 N.Y.S.3d 393 ; People v. Zapata, 186 A.D.3d 761, 772, 127 N.Y.S.3d 280 ).
DILLON, J.P., CONNOLLY, ROMAN and MALTESE, JJ., concur.