Opinion
2015-05-20
PEOPLE of State of New York, respondent, v. Omar WOODS, appellant.
Seymour W. James, Jr., New York, N.Y. (Bonnie C. Brennan of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy, and Arieh Schulman of counsel), for respondent.
Seymour W. James, Jr., New York, N.Y. (Bonnie C. Brennan of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy, and Arieh Schulman of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Dowling, J.), dated August 15, 2012, 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.
Contrary to the defendant's contention, the Supreme Court properly assessed him 15 points under risk factor 11 for a history of drug abuse. The assessment of these points was supported by clear and convincing evidence in the record, including the case summary completed by the Board of Examiners of Sex Offenders and the victim's grand jury testimony ( see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 15 [2006]; People v. Dallas, 122 A.D.3d 698, 699, 995 N.Y.S.2d 618; People v. Williams, 100 A.D.3d 610, 953 N.Y.S.2d 298).
Further, the assessment of 10 points under risk factor 13 (“Conduct while confined/supervised-Unsatisfactory”) was supported by clear and convincing evidence. The defendant's unsatisfactory conduct during his incarceration was established by the case summary and his inmate disciplinary history report, which revealed a multitude of Tier II and III disciplinary violations, some of which were violent in nature ( see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 16 [2006]; People v. Graves, 121 A.D.3d 959, 993 N.Y.S.2d 778; People v. Watson, 109 A.D.3d 463, 970 N.Y.S.2d 92). His conduct while incarcerated also resulted in a separate criminal conviction for assault in the second degree.
In addition, the Supreme Court properly denied the defendant's request for a downward departure from the presumptive level three designation ( see People v. Gillotti, 23 N.Y.3d 841, 845, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701; People v. Wyatt, 89 A.D.3d 112, 131, 931 N.Y.S.2d 85). Accordingly, the defendant was properly designated a level three sex offender.