PEOPLE v. WILSON (2025)

MEMORANDUM AND ORDER

Appeal from an order of the County Court of Warren County (Robert Smith, J.), entered December 5, 2022, which classified defendant as a risk level three sex offender pursuant to the Sex Offender Registration Act.

In 2007, defendant pleaded guilty to rape in the first degree, satisfying a four-count indictment that also charged him with criminal sexual act in the first degree, burglary in the first degree and assault in the second degree, and was sentenced to a prison term of 18 years, to be followed by five years of postrelease supervision.  The charges stemmed from defendant (then 16 years old) pushing out the window air conditioning unit and entering the apartment of a deaf, female neighbor late at night and raping and sodomizing her.

In 2022, in order to permit defendant to be released from prison on his scheduled release date, County Court issued a provisional order, entered upon consent of defendant, that temporarily designated defendant as a level three sexually violent offender until such time as a hearing could be scheduled and a final determination made regarding defendant's appropriate sex offender risk level classification.  In preparation for that hearing, the Board of Examiners of Sex Offenders prepared a risk assessment instrument under the Sex Offender Registration Act (see Correction Law art 6–C [hereinafter SORA]) that assigned a total of 85 points, placing defendant at a presumptive risk level two sex offender classification, with no recommendation for a departure therefrom.  The People disagreed with the Board and prepared their own risk assessment instrument assessing defendant an additional 20 points under risk factor 6 (other victim characteristics), 10 points under risk factor 12 (acceptance of responsibility) and 10 points under risk factor 13 (conduct while confined/supervised), resulting in a total assessment of 125 points, which presumptively classified defendant as a risk level three sex offender.  In the alternative, the People requested an upward departure to a risk level three classification.

At the ensuing hearing, defendant consented to the People's assessment of 20 points under risk factor 6 and successfully challenged the assessment of points under risk factors 9 and 12.  Over defendant's objection, however, County Court determined that 10 points under risk factor 13 were properly assessed.  Given the total risk factor score of 115 points, the court classified defendant as a risk level three sex offender, with a violent sex offender designation.  The court also denied defendant's request for a downward departure.  Defendant appeals.

With respect to risk factor 13, points may be assessed for unsatisfactory conduct while confined based upon, among other reasons, “numerous citations for disciplinary violations” (Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 16 [2006];  see People v. Richard, 233 A.D.3d 1282, 1284, 223 N.Y.S.3d 760 [3d Dept. 2024]).  Clear and convincing evidence supports the assessment of 10 points under risk factor 13 based upon defendant's receipt of six tier II disciplinary determinations and one tier III disciplinary determination for possessing a weapon (see People v. Richard, 233 A.D.3d at 1284, 223 N.Y.S.3d 760;  People v. Aldous, 231 A.D.3d 1243, 1244, 220 N.Y.S.3d 471 [3d Dept. 2024], lv denied 42 N.Y.3d 913, 2025 WL 554775 [2025];  People v. Odell, 197 A.D.3d 1364, 1365, 150 N.Y.S.3d 902 [3d Dept. 2021], lv denied 37 N.Y.3d 918, 2022 WL 402998 [2022]).  Although the tier III infraction occurred over four years prior to the SORA hearing, there is no requirement that the disciplinary infractions be disregarded due to remoteness in time (see People v. Richard, 233 A.D.3d at 1284, 223 N.Y.S.3d 760;  People v. Resto, 221 A.D.3d 415, 416, 197 N.Y.S.3d 228 [1st Dept. 2023], lv denied 41 N.Y.3d 908, 2024 WL 2278687 [2024];  People v. Collins, 188 A.D.3d 1107, 1107–1108, 132 N.Y.S.3d 697 [2d Dept. 2020], lv denied 36 N.Y.3d 912, 2021 WL 1741221 [2021];  People v. Graves, 121 A.D.3d 959, 959–960, 993 N.Y.S.2d 778 [2d Dept. 2014], lv denied 24 N.Y.3d 912, 2014 WL 7179619 [2014]).

As for defendant's request for a downward departure, the factors relied upon by defendant, including his educational achievements and successful participation in substance abuse and sex offender treatment programs, were adequately taken into account by the risk assessment guidelines (see People v. Adams, 174 A.D.3d 828, 829–830, 102 N.Y.S.3d 688 [2d Dept. 2019], lv denied 34 N.Y.3d 906, 2019 WL 6904572 [2019]).  To the extent that defendant challenges his designation as a sexually violent offender, his conviction of rape in the first degree requires such designation and, accordingly, it will not be disturbed (see Correction Law § 168–a [3][a][i];  People v. Hernandez, 187 A.D.3d 1227, 1227–1128, 131 N.Y.S.3d 573 [2d Dept. 2020]).  In view of the foregoing, the question of whether aggravating factors existed to warrant an upward departure is academic.

ORDERED that the order is affirmed, without costs.

Ceresia, J.

Lynch, J.P., Fisher, Powers and Mackey, JJ., concur.