PEOPLE v. AYALA (2023)

Order, Supreme Court, New York County (Melissa C. Jackson, J.), entered on or about December 1, 2017, which adjudicated defendant a level three sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.

Defendant waived his argument that the court improperly conducted a combined SORA hearing and rendered a single risk assessment determination on the two underlying convictions, without a combined risk assessment instrument (RAI) from the SORA Board, by joining the prosecution in requesting a consolidated hearing and proceeding on the People's submission of a combined RAI without requesting that one also be submitted by the Board (see People v. White, 53 N.Y.2d 721, 723, 439 N.Y.S.2d 333, 421 N.E.2d 825 [1981]).  We decline to address it in the interest of justice.

The court's assessment of 10 points under the risk factor for inappropriate living situation was supported by clear and convincing evidence.  Defendant provided no identifiable postrelease address, and had no record of any prior employment, residency in shelters, or participation in community programs, making it difficult to locate him if he were to reoffend (see People v. Alemany, 13 N.Y.3d 424, 430, 893 N.Y.S.2d 448, 921 N.E.2d 140 [2009]).  Defendant has not demonstrated how the requirement that he provide a compliant address before his release bears on the issue of his currently unknown living situation.

The court providently exercised its discretion in granting an upward departure (see generally People v. Gillotti, 23 N.Y.3d 841, 861–862, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]).  In addition to the underlying convictions, defendant had also been convicted of three prior non-registerable sex offenses similar to the offenses at issue.  Defendant's pattern of conduct reflected an inability to control his behavior and his potential danger to the public, which were aggravating factors not accounted for by the RAI (see People v. Gonzalez, 209 A.D.3d 544, 175 N.Y.S.3d 216 [1st Dept. 2022], lv denied 39 N.Y.3d 908, 2023 WL 1975617 [2023]).  The mitigating factors cited by defendant were either taken into account by the RAI or outweighed by the aggravating factors.