PEOPLE v. WILLIAMS (2023)

Order, Supreme Court, New York County (Edward J. McLaughlin, J.), entered on or about May 1, 2015, 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 court's assessment of 30 points under the risk factor for being armed with a dangerous instrument during the commission of the offense was supported by clear and convincing evidence, including the case summary and defendant's admissions at the time of his guilty plea to criminal possession of a weapon in the third degree and attempted sexual abuse in the first degree (see Correction Law § 168–n[3];  People v. Pettigrew, 14 N.Y.3d 406, 409, 901 N.Y.S.2d 569, 927 N.E.2d 1053 [2010];  People v. Jack, 15 A.D.3d 270, 789 N.Y.S.2d 492 [1st Dept. 2005], lv denied 5 N.Y.3d 708, 803 N.Y.S.2d 28, 836 N.E.2d 1151 [2005]).  Defendant used a box cutter to slice open the sleeping victim's pants to facilitate the sex offense.  Under the circumstances of its use, the box cutter was readily capable of causing serious injury, and defendant recklessly disregarded the potential for such injury.  A dangerous instrument need not be used to coerce the victim or cause harm for the points to be properly assessed (see People v. Tuitt, 175 A.D.3d 517, 518, 104 N.Y.S.3d 203 [2d Dept. 2019], lv denied 34 N.Y.3d 909, 2020 WL 729299 [2020]).

The court providently exercised its discretion when it granted a downward departure to level two only, and we find no basis for a further departure to level one (see generally People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]).  Defendant's successful completion of sex offender programming, his lack of a prison disciplinary record, and the fact that he had not committed any prior sex offenses were adequately taken into account by the risk assessment instrument (see e. g. People v. Watson, 112 A.D.3d 501, 503, 977 N.Y.S.2d 24 [1st Dept. 2013], lv denied 22 N.Y.3d 863, 2014 WL 702166 [2014]), and in any event were insufficient to warrant a further departure.

The court properly designated defendant a sexually violent offender because he was convicted of an enumerated offense, and it lacked discretion to refrain from doing so (see People v. Talluto, 39 N.Y.3d 306, 314–315, 186 N.Y.S.3d 78, 206 N.E.3d 1221 [2022]).  Defendant's constitutional challenge to that mandatory designation is unavailing (see generally People v. Knox, 12 N.Y.3d 60, 68–69, 875 N.Y.S.2d 828, 903 N.E.2d 1149 [2009], cert denied 558 U.S. 1011, 130 S.Ct. 552, 175 L.Ed.2d 382 [2009]).