People v. Pinckney — 129 A.D.3d 1048

Majority

p. 1048

The People of State of New York, Respondent, v Jeffrey Pinckney, Appellant.

[11 NYS3d 676]

Appeal by the defendant from an order of the Supreme Court, Kings County (J. Goldberg, J.), dated November 1, 2011, 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.

The Supreme Court properly designated the defendant a level three sex offender. Contrary to the defendant’s contention, the court properly assessed 10 points under risk factor 10 of the Sex Offender Registration Act Guidelines (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary [2006] [hereinafter SORA Guidelines]), based on the recency of a prior felony committed by him. The People established, by clear and convincing evidence, that the defendant had been at liberty for a period of less than three years between the time of his prior felony conviction on December 18, 1989, and the instant offense, which occurred on August 19, 1992 (see People v James, 99 AD3d 775 [2012]; People v Dunn, 82 AD3d 856 [2011]; People v Hyson, 27 AD3d 919 , 920 [2006]; cf. People v Neuer, 86 AD3d 926 [2011]). Furthermore, the court appropriately assessed 15 points under risk factor 11, as the People established, by clear and convincing evidence, that the defendant had a history of drug abuse (see People v Palmer, 20 NY3d 373 , 377-378 [2013]; People v Johnson, 109 AD3d 972 [2013]; People v Finizio, 100 AD3d 977 , 978 [2012]; People v Harris, 93 AD3d 704 [2012]).

In addition, the Supreme Court properly assessed 15 points

p. 1049

under both risk factor 12 and risk factor 14 (see People v Pratt, 61 AD3d 836 [2009]; People v Orengo, 40 AD3d 609 [2007]). The People presented clear and convincing evidence that the defendant refused to participate in sex offender treatment while incarcerated, justifying the assessment of 15 points under risk factor 12 (see People v Grigg, 112 AD3d 802 [2013]; People v Barclay, 107 AD3d 868 [2013]). The defendant was properly assessed 15 points under risk factor 14 for being released into the community without supervision (see SORA Guidelines at 17; People v Stapleton, 125 AD3d 951 , 952 [2015]; People v Fryer, 101 AD3d 835 [2012]). Contrary to the defendant’s contention, the assessment of points under both risk factor 12 and risk factor 14 did not amount to impermissible “double counting” (People v Ologbonjaiye, 109 AD3d 804 , 805 [2013]; see People v Johnson, 118 AD3d 684 , 685 [2014]).

The Supreme Court properly denied the defendant’s request for a downward departure from his presumptive risk level designation, as the record does not reflect the existence of special circumstances warranting a downward departure (see People v Johnson, 118 AD3d at 685 ; see generally People v Wyatt, 89 AD3d 112 , 118-122 [2011]).

Balkin, J.P., Hall, Austin and Sgroi, JJ., concur.

Cases cited

People v. James 99 AD3d 775 N.Y. App. Div. 2012-10-10 p. 1048
People v. Dunn 82 AD3d 856 N.Y. App. Div. 2011-03-08 p. 1048
People v. Hyson 27 AD3d 919 N.Y. App. Div. 2006-03-16 at 920 p. 1048
People v. Neuer 86 AD3d 926 N.Y. App. Div. 2011-07-01 p. 1048
People v. Palmer 20 NY3d 373 N.Y. 2013-02-12 at 377-378 p. 1048
People v. Johnson 109 AD3d 972 N.Y. App. Div. 2013-09-25 p. 1048
People v. Finizio 100 AD3d 977 N.Y. App. Div. 2012-11-28 at 978 p. 1048
People v. Harris 93 AD3d 704 N.Y. App. Div. 2012-03-13 p. 1048
People v. Pratt 61 AD3d 836 N.Y. App. Div. 2009-04-21 p. 1049
People v. Orengo 40 AD3d 609 N.Y. App. Div. 2007-05-01 p. 1049
People v. Grigg 112 AD3d 802 N.Y. App. Div. 2013-12-18 p. 1049
People v. Barclay 107 AD3d 868 N.Y. App. Div. 2013-06-19 p. 1049
People v. Stapleton 125 AD3d 951 N.Y. App. Div. 2015-02-25 at 952 p. 1049
People v. Fryer 101 AD3d 835 N.Y. App. Div. 2012-12-12 p. 1049
People v. Ologbonjaiye 109 AD3d 804 N.Y. App. Div. 2013-09-11 at 805 p. 1049
People v. Johnson 118 AD3d 684 N.Y. App. Div. 2014-06-04 at 685 p. 1049
People v. Wyatt 89 AD3d 112 N.Y. App. Div. 2011-10-18 at 118-122 p. 1049