People v Johnson

People v Johnson 2015 NY Slip Op 05881 Decided on July 7, 2015 Appellate Division, First 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 July 7, 2015
Tom, J.P., Andrias, Feinman, Gische, Kapnick, JJ.
15628 3799/72 4532/72

[*1] The People of the State of New York, Respondent,

v

Curtis Johnson, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Beth Fisch Cohen of counsel), for respondent.

Order, Supreme Court, New York County (Jill Konviser, J.), entered on or about June 25, 2013, which adjudicated defendant a level three sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously modified, on the law, to the extent of vacating the designation as a sexually violent offender, and otherwise affirmed, without costs.

Defendant was properly adjudicated a level three sex offender. Clear and convincing evidence established that defendant was properly scored 30 points under the risk factor for number of victims (see People v Mingo, 12 NY3d 563 [2009]). The court properly considered highly reliable proof of a pattern of associated sex crimes, since neither the Board nor the hearing court was limited to the underlying convictions (see People v Epstein, 89 AD3d 570 [1st Dept 2011]; People v Johnson, 77 AD3d 548 [1st Dept 2010], lv denied 16 NY3d 705 [2011]).

Defendant's contention that he should have received a downward departure is unpreserved because he made no such application to the hearing court (see People v Gillotti, 23 NY3d 841, 861, n 5 [2014]). In any event, we find no basis for such a departure.

As the People concede, a court making a redetermination under Doe v Pataki (3 F Supp 2d 456 [1998]) may not make a sexually violent offender designation (People v Velez, 100 AD3d 847 [2d Dept 2012], lv denied 21 NY3d 853 [2012]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JULY 7, 2015

CLERK