PEOPLE v. HITCHCOCK (2018)

DECISION & ORDER

ORDERED that the order is affirmed, without costs or disbursements.

In establishing an offender's appropriate risk level under the Sex Offender Registration Act (see Correction Law art 6–C;  hereinafter SORA), “[t]he People ‘bear the burden of proving the facts supporting the determinations’ by clear and convincing evidence” (People v. Pettigrew, 14 N.Y.3d 406, 408, 901 N.Y.S.2d 569, 927 N.E.2d 1053, quoting Correction Law § 168–n[3];  see SORA:  Risk Assessment Guidelines and Commentary at 5 [2006;  hereinafter Guidelines];  People v. Mingo, 12 N.Y.3d 563, 571, 883 N.Y.S.2d 154, 910 N.E.2d 983).  “In assessing points, evidence may be derived from the defendant's admissions, the victim's statements, evaluative reports completed by the supervising probation officer, parole officer, or corrections counselor, case summaries prepared by the Board of Examiners of Sex Offenders ․ or any other reliable source, including reliable hearsay” (People v. Crandall, 90 A.D.3d 628, 629, 934 N.Y.S.2d 446;  see Guidelines at 5 [2006];  People v. Mingo, 12 N.Y.3d at 571–572, 883 N.Y.S.2d 154, 910 N.E.2d 983).

The defendant's contention that the Supreme Court improperly assessed him 15 points under risk factor 11 of the risk assessment instrument based on a history of drug or alcohol abuse is unpreserved for appellate review (see People v. Lowery, 140 A.D.3d 1141, 1142, 35 N.Y.S.3d 684;  People v. Game, 131 A.D.3d 460, 460, 13 N.Y.S.3d 900).  In any event, the People presented clear and convincing evidence that the defendant had a history of drug and alcohol abuse (see People v. Reali, 159 A.D.3d 1030, 1031, 70 N.Y.S.3d 392;  People v. Dipilato, 155 A.D.3d 792, 793, 63 N.Y.S.3d 525).  Similarly, the court's assessment of 20 points under risk factor 13 was proper.  The People provided clear and convincing evidence that the defendant engaged in unsatisfactory conduct by engaging in sexual misconduct while confined or supervised (see People v. Anderson, 151 A.D.3d 767, 768, 56 N.Y.S.3d 240;  People v. Dallas, 122 A.D.3d 698, 699, 995 N.Y.S.2d 618).

We agree with the Supreme Court's denial of the defendant's application for a downward departure from his presumptive risk level designation, as he failed to identify and establish the existence of an appropriate mitigating factor that “tends to establish a lower likelihood of reoffense or danger to the community” and was not adequately taken into account by the Guidelines (People v. Uphael, 140 A.D.3d 1143, 1144, 35 N.Y.S.3d 194 [internal quotation marks omitted];  see People v. Santiago, 137 A.D.3d 762, 26 N.Y.S.3d 339;  People v. Benjamin, 105 A.D.3d 926, 963 N.Y.S.2d 336;  People v. Martinez, 104 A.D.3d 924, 924–925, 962 N.Y.S.2d 336).

ROMAN, J.P., SGROI, MALTESE and LASALLE, JJ., concur.