People v Davidson (Dwayne)
Annotate this CaseDecided on November 18, 2022
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ
2020-334 K C
The People of the State of New York, Respondent,
against
Dwayne Davidson, Appellant.
New York City Legal Aid Society (Tomoeh Murakami Tse of counsel), for appellant. Kings County District Attorney (Leonard Joblove, Morgan J. Dennehy and Daniel Berman of counsel), for respondent.
Appeal from an order of the Criminal Court of the City of New York, Kings County (Abena Darkeh, J.), dated January 24, 2020. The order, after a hearing, designated defendant a level two sex offender pursuant to Correction Law article 6-C.
ORDERED that the order is affirmed, without costs.
In the underlying criminal action, defendant was convicted of forcible touching (Penal Law § 130.52 [1]). At the risk assessment hearing pursuant to the Sex Offender Registration Act (Correction Law art 6-C; hereinafter SORA), defendant was assessed a total of 50 points, thereby presumptively classifying him as a level one sex offender. Defendant did not challenge the total points assessed in the Risk Assessment Instrument (RAI). In assessing 30 points under risk factor 9 (number and nature of prior crimes), the evidence submitted by the People at the SORA hearing consisted of, among other things, defendant's long criminal history, which included a 2017 conviction for forcible touching (Penal Law § 130.52 [1]) and a 2018 conviction for public lewdness (Penal Law § 245.00). Upon the People's request for an upward departure, the court found that the prior forcible touching and public lewdness convictions were not adequately taken into account in the RAI, since these convictions demonstrated defendant's pattern of sexual [*2]behavior within a short period of time, and that defendant had committed the underlying forcible touching offense while he was on probation for the 2018 public lewdness conviction. The court granted the People's request for an upward departure and, by order dated January 24, 2020, the Criminal Court designated defendant a level two sex offender. The court denied defendant's request for a downward departure.
On appeal, defendant challenges the court's upward departure to a risk level two designation as improper because his prior convictions for forcible touching in 2017 and public lewdness in 2018 were already adequately taken into account by the SORA Guidelines. Moreover, defendant argues, the court should not have considered the prior 2017 conviction for forcible touching because it was not a "[s]ex offense" as defined under Correction Law § 168-a (2) (c) (ii), as he had not previously been convicted of forcible touching prior to 2017. Furthermore, since the prior forcible touching conviction made the underlying forcible touching conviction a registerable event, it constituted impermissible double counting when it was considered by the court in granting the People's request for an upward departure. Additionally, defendant argued that the court should have granted his request for a downward departure because he had been living in the community for five months without any arrests and has a favorable employment history.
In rendering its determination, the Criminal Court did not set forth in a written order its "findings of fact and conclusions of law on which [its] determinations [were] based" (Correction Law § 168-n [3]); rather, its findings were made orally at the SORA hearing. However, remittal is not required as the record is sufficient for this court to make its own findings of fact and conclusions of law (see People v Finizio, 100 AD3d 977 [2012]; People v Harris, 93 AD3d 704 [2012]).
In seeking an upward departure, the People must identify an aggravating factor that tends to establish a higher likelihood of reoffense or danger to the community not adequately taken into account by the RAI, and prove the facts in support of the aggravating factor by clear and convincing evidence (see People v Gillotti, 23 NY3d 841, 861 [2014]; People v DeDona, 102 AD3d 58 [2012]; People v Wyatt, 89 AD3d 112 [2011]; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]). The court may, in its discretion, choose to upwardly depart if the People have met their burden (see Gillotti, 23 NY3d at 861; DeDona, 102 AD3d at 68; Wyatt, 89 AD3d at 121).
While a conviction of forcible touching is not a sex offense for registration purposes unless it is preceded by an earlier forcible touching conviction (see Correction Law § 168-a [2] [c] [iii]), both the forcible touching and public lewdness convictions are misdemeanor sex crimes and are already accounted for under risk factor 9 (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 13 [2006]; Penal Law § 130.52; People v Mott, 195 AD3d 756 [2021]; People v Perez, 162 AD3d 1083 [2018]).
Nevertheless, the Criminal Court properly determined that the People presented clear and [*3]convincing evidence of an aggravating factor not adequately taken into account by the Guidelines, namely, defendant's escalating history of sexual misconduct in a short period of time (see People v Smith, 168 AD3d 1006, 1007 [2019]; People v Ragabi, 150 AD3d 1161, 1162 [2017]; People v Ziliox, 145 AD3d 925 [2016]; People v Davis, 139 AD3d 1226, 1228 [2016]; People v Jackson, 139 AD3d 1031 [2016]). Moreover, when defendant committed the underlying forcible touching offense, he was on probation for the 2018 conviction of public lewdness, which constituted an aggravating factor that was not adequately taken into account in the RAI and the Guidelines, as it established a higher likelihood of reoffense or danger to the community (see People v Almonte, 171 AD3d 660 [2019]).
We find no basis to grant defendant's request for a downward departure, as the purported mitigating factors cited by defendant, including his employment history and living in the community for five months without any incidents, were either adequately taken into account by the Guidelines (see Smith, 168 AD3d at 1007; Ragabi, 150 AD3d at 1162; Ziliox, 145 AD3d 925; Davis, 139 AD3d at 1228; Jackson, 139 AD3d 1031) or were outweighed by aggravating factors presenting a risk of future recidivism (see People v Waters, 198 AD3d 1024, 1026 [2021]).
Accordingly, the order is affirmed.
ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 18, 2022
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