SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
335
KA 15-01448
PRESENT: WHALEN, P.J., SMITH, CARNI, LINDLEY, AND NEMOYER, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
JAMAL ASFOUR, DEFENDANT-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF
COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.
Appeal from an order of the Supreme Court, Monroe County (Daniel
J. Doyle, J.), entered July 2, 2015. The order determined that
defendant is a level three risk pursuant to the Sex Offender
Registration Act.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: Defendant appeals from an order determining that he
is a level three risk pursuant to the Sex Offender Registration Act
([SORA] Correction Law § 168 et seq.). We reject defendant’s
contention that he should not have been assessed 30 points under risk
factor 5, age of victim, because the People did not establish the
victim’s age as being less than 11 years of age by clear and
convincing evidence. Defendant pleaded guilty to course of sexual
conduct against a child in the first degree under Penal Law § 130.75
(1) (a), a necessary element of which is that the victim be a child
less than 11 years old. Because “[f]acts previously . . . elicited at
the time of entry of a plea of guilty shall be deemed established by
clear and convincing evidence and shall not be relitigated” for
purposes of a SORA determination (Correction Law § 168-n [3]), Supreme
Court properly assessed 30 points under risk factor 5 (see People v
Benitez, 140 AD3d 1140, 1141, lv denied 28 NY3d 908; see generally
People v Law, 94 AD3d 1561, 1562, lv denied 19 NY3d 809).
We agree with defendant, however, that the People failed to
establish by the requisite clear and convincing evidence that he
should be assessed 20 points under risk factor 13 based upon his
conduct while under supervision. Although the People established at
the SORA hearing that defendant committed the instant offense while
under supervision for a prior conviction of criminal sexual act in the
first degree, risk factor 13 is concerned with a sex offender’s
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KA 15-01448
post-offense behavior while supervised (see People v Neuer, 86 AD3d
926, 927, lv denied 17 NY3d 716; see generally People v Warren, 42
AD3d 593, 594-595, lv denied 9 NY3d 810). Because there is no
indication that defendant engaged in any inappropriate behavior while
supervised for the present offense, we conclude that the court erred
in assessing the 20 points under risk factor 13 (see Neuer, 86 AD3d at
927). Nonetheless, defendant remains a level three risk, even
subtracting those 20 points from the total of 145 points assessed by
the court.
We reject defendant’s further contention that the court abused
its discretion in denying his request for a downward departure from
the presumptive risk level. “A departure from the presumptive risk
level is warranted if there is ‘an aggravating or mitigating factor of
a kind, or to a degree, that is otherwise not adequately taken into
account by the guidelines’ ” (People v Smith, 122 AD3d 1325, 1325,
quoting Sex Offender Registration Act: Risk Assessment Guidelines and
Commentary at 4 [2006] [guidelines]; see People v Carlberg, 145 AD3d
1646, 1646-1647). Contrary to defendant’s contention, his young age
at the time of his first sex offense is already taken into account by
the guidelines, as an aggravating factor under factor 8 (see People v
Rodriguez, 145 AD3d 489, 490, lv denied 28 NY3d 916). Additionally,
defendant failed to submit any evidence that his alleged low IQ was a
factor that reduced his risk of reoffending (see generally People v
Grady, 81 AD3d 1464, 1465).
Entered: March 24, 2017 Frances E. Cafarell
Clerk of the Court