PEOPLE v. ORTIZ (2018)

Order, Supreme Court, Bronx County (Troy K. Webber, J.), entered on or about December 9, 2015, 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.

The People met their burden of establishing, by clear and convincing evidence, risk factors bearing a sufficient total point score to support a level three sex offender adjudication (see Correction Law § 168–n[3] ).  Defendant was properly assessed points under the risk factor for being a stranger to the victim.  To impute to defendant the codefendant's alleged acquaintance with the victim would be an illogical application of the principle of accessorial liability, having little bearing on defendant's personal risk of reoffense.  The court also properly considered defendant's prior youthful offender adjudication in assessing points under the risk factors for prior crimes and the recency of those prior crimes (see People v. Francis, 30 N.Y.3d 737, 71 N.Y.S.3d 394, 94 N.E.3d 882 [2018];  see also People v. Wilkins, 77 A.D.3d 588, 909 N.Y.S.2d 362 [1st Dept. 2010], lv denied 16 N.Y.3d 703, 2011 WL 135731 [2011] ).

The court 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, most notably his age (nearly 17) at the time of the underlying crime, were adequately taken into account by the risk assessment instrument, or were outweighed by the heinousness of the crime.

The court properly designated defendant a sexually violent offender because he was convicted of an enumerated offense, as an adult offender under New York law, and it lacked discretion to do otherwise (see People v. Bullock, 125 A.D.3d 1, 997 N.Y.S.2d 396 [1st Dept. 2014], lv denied 24 N.Y.3d 915, 2015 WL 649330 [2015] ).  We have considered and rejected defendant's constitutional arguments, including his claims that, because of his age at the time of the crime, he was constitutionally entitled to relief from his risk level and his sexually violent offender designation.