| People v Brown |
| 2015 NY Slip Op 06499 |
| Decided on August 12, 2015 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on August 12, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
LEONARD B. AUSTIN
SHERI S. ROMAN
SANDRA L. SGROI, JJ.
2013-02046
v
Calvin Brown, appellant.
Lynn W. L. Fahey, New York, N.Y. (Jenin Younes of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy, and Anthea H. Bruffee of counsel), for respondent.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Kings County (DiMango, J.), dated January 14, 2013, 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.
Contrary to the defendant's contention, the People proved by clear and convincing evidence that he was properly assessed points under risk factor 6, based on the victim's mental disability (see People v Leeks, 43 AD3d 1251; cf. People v Green, 104 AD3d 1222). In addition, the defendant's contention that the assessment of points under risk factors 5 (age of victim) and 6 constituted improper double counting is unpreserved for appellate review (see People v Jones, 101 AD3d 836; People v Fredlund, 38 AD3d 636) and, in any event, without merit (see People v Caban, 61 AD3d 834, 835). The Supreme Court properly assessed points under risk factor 12 based upon the defendant's removal from treatment programs for disciplinary reasons while incarcerated (see People v DeCastro, 101 AD3d 693; People v Peana, 68 AD3d 737; People v Orengo, 40 AD3d 609, 610).
The defendant's remaining contention is without merit.
Accordingly, the Supreme Court properly designated the defendant a level three sex offender (see People v Grubbs, 107 AD3d 771; People v Lacewell, 103 AD3d 784).
MASTRO, J.P., AUSTIN, ROMAN and SGROI, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court