PEOPLE v. MCNEILL (2023)

Order, Supreme Court, New York County (Curtis J. Farber, J.), entered on or about October 1, 2021, which adjudicated defendant a level three sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.

The People were entitled to introduce the victim's grand jury testimony and her trial testimony from a codefendant's trial, along with the corroborative hearing and trial testimony of defendant's then-underage girlfriend and defendant's own statements of remorse, to establish clear and convincing evidence that defendant ran a prostitution ring, threatened the victim with a gun to get her to work for him as a prostitute, and raped the victim on multiple occasions (see People v. Sincerbeaux, 27 N.Y.3d 683, 688, 37 N.Y.S.3d 39, 57 N.E.3d 1076 [2016];  People v. Sanchez, 192 A.D.3d 409, 410, 139 N.Y.S.3d 542 [1st Dept. 2021];  People v. Epstein, 89 A.D.3d 570, 570–71, 933 N.Y.S.2d 239 [1st Dept. 2011]).  Such evidence constituted “highly reliable proof” that outweighed any competing inferences to the contrary (Epstein, 89 A.D.3d at 570–71, 933 N.Y.S.2d 239).  Accordingly, the court's point assessments under risk factors 1 to 4 were properly made.

The court providently exercised its discretion when it declined to grant defendant's request for a downward departure (People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]).  To the extent that defendant cites his lack of criminal history and family support, these factors were accounted for in risk factors 8, 9, 10, and 15, for which defendant was scored zero points, and they were far outweighed by defendant's horrific acts of luring a child victim to his apartment, repeatedly raping her, and forcing her to take part in a prostitution ring (see People v. Romulus, 189 A.D.3d 553, 554, 136 N.Y.S.3d 291 [1st Dept. 2020], lv denied 37 N.Y.3d 910, 2021 WL 4190158 [2021]).  Additionally, defendant accrued five tier II and two tier III infractions in prison, including a tier III infraction for violent conduct a few months before his release.  Thus, his prison record was far from exemplary (see People v. Holmes, 195 A.D.3d 528, 145 N.Y.S.3d 794 [1st Dept. 2021], lv denied 37 N.Y.3d 912, 2021 WL 4782530 [2021];  People v. Chabrier, 38 A.D.3d 355, 830 N.Y.S.2d 898 [1st Dept. 2007], lv denied 9 N.Y.3d 801, 840 N.Y.S.2d 567, 872 N.E.2d 253 [2007]).