PEOPLE v. JOHNSON (2020)

Order (Guy H. Mitchell, J.), entered July 22, 2016, affirmed.

The delay between the underlying forcible touching conviction and the SORA hearing did not violate defendant's right to due process. Correction Law § 168—l(8) provides that a failure by a state or local agency to act or by a court to render a determination within the time period specified by the Sex Offender Registration Act shall not affect the obligation of a sex offender to register or verify under SORA, nor shall such failure prevent a court from making a determination regarding the sex offender's level of notification. SORA is regulatory rather than criminal in nature and, as such, “the due process protections required for a risk level classification proceeding are not as extensive as those required in a plenary criminal or civil trial” (People v. Baxin, 26 N.Y.3d 6, 10 [2015] [internal quotation marks omitted] ). “Considering that defendant was already under a life-long obligation to register as a risk level three sex offender” as a result of a 2005 third-degree rape conviction (People v. Gallagher, 129 A.D.3d 1252, 1253 [2015], lv denied 26 N.Y.3d 908 [2015]), we conclude that the delay herein was not “so outrageously arbitrary as to constitute a gross abuse of governmental authority” (People v. Lumpkin, 168 A.D.3d 1111, 1112 [2019], lv denied 33 N.Y.3d 907 [2019], quoting People v. Gonzalez, 138 A.D.3d 814, 815 [2016], lv denied 27 N.Y.3d 913 [2016]).

The court properly exercised its discretion when it granted an upward departure from defendant's presumptive risk level to risk level three (see People v. Gillotti, 23 N.Y.3d 841 [2014]). Clear and convincing evidence established aggravating factors that were not adequately taken into account by the risk assessment instrument or by the SORA guidelines (see People v. Gillotti, 23 N.Y.3d at 861-862). Although defendant was assessed points for the number and nature of his prior crimes, this did not reflect the seriousness and extent of that history, which included assault and public lewdness convictions, as well as defendant's extensive post-offense criminal conduct, including, inter alia, his 2005 forcible rape of a fellow psychiatric inpatient, a 2006 third-degree assault conviction and a 2015 public lewdness conviction, conduct that was indicative of defendant's continued pattern of aggressive sexual behavior and high risk of recidivism (see People v. Cruz, 182 A.D.3d 415 [2020]; People v. Taylor, 154 A.D.3d 524 [2017], lv denied 30 N.Y.3d 909 [2018]; People v. Roman, 143 A.D.3d 476 [2016], lv denied 28 N.Y.3d 912 [2017]; People v. Goodwin, 126 A.D.3d 610, 611 [2015], lv denied 25 N.Y.3d 913 [2015]).

Per Curiam.