PEOPLE v. BELL (2025)

Order, Supreme Court, New York County (Gilbert C. Hong, J.), entered on or about January 3, 2019, which adjudicated defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.

The court properly adjudicated defendant a sex offender in New York because his conviction of Criminal Sexual Contact in the Fourth Degree in New Jersey constituted a registrable offense in that state (see Correction Law § 168–a[2][d][ii]).  Nothing in NJ Stat Ann § 2C:7–2 exempts inmates who plan to, or are required to, be released to another state, as defendant was, from the ambit of the statute.  Indeed, defendant falls squarely within NJ Stat Ann § 2C:7–2(c)(2), which provides for registration by “[a] person confined in a correctional ․ facility ․ prior to release in accordance with procedures established by the Department of Corrections ․”

Defendant's arguments that he should have been adjudicated a level one sex offender are unavailing.  The court properly assessed points under factor 11 for defendant's history of drug abuse (see People v. Padilla, 116 A.D.3d 566, 567, 983 N.Y.S.2d 725 [1st Dept. 2014], lv denied 24 N.Y.3d 902, 2014 WL 4357481 [2014]) and under factor 12 based on defendant's refusal to participate in sex offender treatment while incarcerated in New York for a violation of parole (see generally People v. Solomon, 202 A.D.3d 88, 94, 160 N.Y.S.3d 30 [1st Dept. 2021], lv denied 38 N.Y.3d 906, 2022 WL 1261737 [2022]).

Finally, the court acted within its broad discretion in denying defendant's request for a downward departure (see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]).  Contrary to defendant's arguments, the points assessed under factors 11 and 12 did not tend to overstate defendant's risk of reoffense.  In these circumstances, we decline to exercise our independent discretion to grant defendant a downward departure (see People v. Gonzalez, 91 A.D.3d 417, 417, 937 N.Y.S.2d 6 [1st Dept. 2012]).