People v Kelly

People v Kelly 2007 NY Slip Op 10129 [46 AD3d 790] December 18, 2007 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 13, 2008

The People of the State of New York, Respondent,
v
Fitzroy Kelly, Appellant.

—[*1] Steven Banks, New York, N.Y. (Arthur H. Hopkirk of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Anthea H. Bruffee, and Morgan J. Dennehy of counsel), for respondent.

Appeal by the defendant from an order of the Supreme Court, Kings County (Marrero, J.), dated March 7, 2006, which, after a hearing to redetermine the defendant's sex offender risk level pursuant to the stipulation of settlement in Doe v Pataki (3 F Supp 2d 456 [1998]), 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 found that the defendant was a level three sex offender under the Sex Offender Registration Act (hereinafter SORA). The defendant's challenge to the assessment of 20 points based upon his possession of a gun during the crime is, in part, not preserved for appellate review. At the hearing, the defendant challenged only the credibility of the complainant with respect to whether he had threatened her with a gun, a claim we find to be without merit. The defendant did not argue, as he does on appeal, that the People failed to meet their burden of proving by clear and convincing evidence that the gun was a "dangerous instrument" as defined by Penal Law § 10.00 (13) (cf. People v Alston, 270 AD2d 281 [2000]).

The defendant further argues that the People did not prove by clear and convincing evidence that he had a history of drug abuse, and therefore that he should not have been assessed 15 points under risk factor 11. The Supreme Court, however, did not assess him any points on this factor. The court merely misspoke when it said it was not assessing any points for the defendant's refusal to accept responsibility (risk factor 12), a risk factor that the defendant has not challenged and which was established by clear and convincing evidence. Instead, the record, when viewed in [*2]its totality, clearly indicates that the court rejected the assessment of 15 points under risk factor 11, rather than the assessment of 15 points under risk factor 12.

The defendant's remaining contention, regarding risk factor 9 (number and nature of prior crimes), is unpreserved for appellate review, as the defendant expressly declined to contest this risk level factor at the SORA hearing. Crane, J.P., Rivera, Angiolillo and Dickerson, JJ., concur.