PEOPLE v. BROWN (2018)

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Queens County (Robert A. Schwartz, J.), dated December 16, 2015, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6–C.

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

In establishing a defendant's risk level under the Sex Offender Registration Act (see Correction Law art 6–C;  hereinafter SORA), the People bear the burden of establishing, by clear and convincing evidence, the facts supporting the determinations sought (see Correction Law § 168–n[3] ).

Contrary to the defendant's contention, the People established, by clear and convincing evidence, that the defendant and the victim were strangers within the meaning of SORA (see SORA:  Risk Assessment Guidelines and Commentary [hereinafter SORA Guidelines] at 12;  People v. Mitchell, 142 A.D.3d 542, 543, 36 N.Y.S.3d 490;  People v. Mabee, 69 A.D.3d 820, 820, 893 N.Y.S.2d 585).  Thus, we agree with the Supreme Court's assessment of 20 points under risk factor 7.

Further, the People presented clear and convincing evidence that the defendant did not genuinely accept responsibility for his conduct, thus warranting the assessment of 10 points under risk factor 12 (see SORA Guidelines at 15–16;  People v. Ramos, 147 A.D.3d 1090, 1090–1091, 46 N.Y.S.3d 906;  People v. Murphy, 68 A.D.3d 832, 833, 890 N.Y.S.2d 605).

An upward departure from the presumptive risk level is permitted only if the court determines, upon clear and convincing evidence, “ ‘that there exists an aggravating ․ factor of a kind, or to a degree, that is otherwise not adequately taken into account by the [SORA] guidelines’ ” (People v. Gillotti, 23 N.Y.3d 841, 853, 994 N.Y.S.2d 1, 18 N.E.3d 701, quoting SORA Guidelines at 4 [internal quotation marks omitted] ).  Here, contrary to the defendant's contention, the People presented clear and convincing evidence that the defendant's attempted murder of the victim while he was out on bail awaiting trial for the underlying sexual offense constituted an aggravating factor not adequately taken into account by the SORA Guidelines (see People v. Nicholas P., 151 A.D.3d 500, 501, 53 N.Y.S.3d 543;  People v. Buss, 44 A.D.3d 634, 635, 843 N.Y.S.2d 376, affd 11 N.Y.3d 553, 872 N.Y.S.2d 413, 900 N.E.2d 964).  Under the circumstances, the court providently exercised its discretion in granting the People's application for an upward departure (see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701).  Accordingly, the defendant was properly designated a level three sex offender.

SCHEINKMAN, P.J., COHEN, DUFFY and CONNOLLY, JJ., concur.