PEOPLE v. MUHAMMAD (2023)

Order, Supreme Court, New York County (Robert M. Mandelbaum, J.), entered on or about March 10, 2022, which adjudicated defendant a level two sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.

The SORA Board issued a risk assessment instrument (RAI) assessing defendant 60 points, making him a presumptive level one offender.  However, the SORA hearing court, having also presided over defendant's trial and finding the victim's testimony credible, properly determined that the testimony provided the requisite clear and convincing evidence for the assessment of 25 points under risk factor 2 (sexual contact with victim), and 20 points under risk factor 4 (duration of offense conduct with victim).  The acquittal of the predatory sexual assault charges at defendant's criminal trial did not foreclose the SORA court from finding that defendant committed the acts by clear and convincing evidence (see People v. Britton, 31 N.Y.3d 1019, 1020, 75 N.Y.S.3d 459, 99 N.E.3d 852 [2018]).  The testimony established that defendant engaged in sexual intercourse and oral sexual conduct with the victim.  It also established that defendant engaged in a continuing course of sexual misconduct by having subjected the victim to “two or more acts of sexual contact [that were] separated in time by at least 24 hours” and, alternatively, “three or more acts of sexual contact over a period of at least two weeks” (Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 10 [2006]).

The court further providently exercised its discretion when it declined to grant a downward departure (see People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]).  The mitigating factors cited by defendant, including his familial support, minimal criminal history, and educational, vocational and employment accomplishments while incarcerated, were adequately taken into account by the RAI, or were not shown to reduce defendant's risk of reoffense (see People v. Sadagheh, 214 A.D.3d 566, 566, 183 N.Y.S.3d 853 [1st Dept. 2023], lv denied 40 N.Y.3d 902, 2023 WL 6066638 [2023]).  In any event, the mitigating factors were outweighed by the seriousness of the underlying crime, which involved sexual abuse of a young child.