People v. Douglas

• Decision Date: 16 December 2020
• Docket Number: 2018–10315
• Citation: People v. Douglas, 189 A.D.3d 1276, 134 N.Y.S.3d 208(Mem) (N.Y. App. Div. 2020)
• Parties: PEOPLE of State of New York, respondent, v. Kareem DOUGLAS, appellant.
• Court: New York Supreme Court — Appellate Division

189 A.D.3d 1276

134 N.Y.S.3d 208 (Mem)

PEOPLE of State of New York, respondent,

v.Kareem DOUGLAS, appellant.

2018–10315

Supreme Court, Appellate Division, Second Department, New York.

Submitted—June 12, 2020

December 16, 2020

Laurette D. Mulry, Riverhead, N.Y. (Kirk R. Brandt of counsel), for appellant.

Timothy D. Sini, District Attorney, Riverhead, N.Y. (Kathleen Becker Langlan of counsel), for respondent.

WILLIAM F. MASTRO, J.P. SYLVIA O. HINDS–RADIXFRANCESCA E. CONNOLLYPAUL WOOTEN, JJ.

DECISION & ORDER

Appeal by the defendant from an order of the County Court, Suffolk County(Barbara Kahn, J.), dated August 13, 2018, 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.

In 2003, the defendant was convicted, upon a plea of guilty, of, inter alia, kidnapping in the second degree and unlawful imprisonment in the first degree in connection with an armed robbery/burglary of a home.During the home invasion, a father, mother, and 14–year–old boy were tied up, the mother was sexually assaulted by a codefendant in the defendant's presence, and a gun was discharged, with the bullet narrowly missing a 3–year–old child.At one point, the defendant held a gun to the father's head while items were stolen.The defendant was sentenced to a term of imprisonment of 8½ to 10 years followed by a period of postrelease supervision of 5 years.Upon his release, the defendant was required to register as a sex offender due to his conviction of kidnapping and unlawful imprisonment of children less than 17 years old where he was not their parent, even though he did not commit a sexual act.The Board of Examiners of Sex Offenders assessed the defendant a total of 195 points, which would make him a presumptive level three sex offender.

At a hearing pursuant to the Sex Offender Registration Act(seeCorrection Law art 6–C [hereinafter SORA] ), the People requested that the defendant be designated a level three sex offender.The defendant disputed the assessment of points under risk factors 2 and 13, and sought a downward departure based on the mitigating factor that he did not have sexual contact with the female victim.By order dated August 13, 2018, the County Court denied the defendant's request for a downward departure and designated the defendant a level three sex offender.The defendant appeals.

The defendant's claim that his risk level designation should be vacated because the Judge who presided over the SORA hearing was not the same Judge who accepted his plea of guilty and sentenced him, was not raised at any time before the SORA court and is unpreserved for appellate review (see e.g.People v. Worrell,183 A.D.3d 602, 122 N.Y.S.3d 356;People v. Dipilato,155 A.D.3d 792, 63 N.Y.S.3d 525 ).

The defendant's contention that the Sex Offender Registration Act is unconstitutional as applied to him is unpreserved for appellate review (seePeople v. Howard,27 N.Y.3d 337, 342, 33 N.Y.S.3d 132, 52 N.E.3d 1158 ), and, in any event, is without merit (seePeople v. Knox,12 N.Y.3d 60, 875 N.Y.S.2d 828, 903 N.E.2d 1149;People v. Suarez,147 A.D.3d 802, 45 N.Y.S.3d 801;People v. Edney,143 A.D.3d 793, 38 N.Y.S.3d 817;People v. Taylor,42 A.D.3d 13, 835 N.Y.S.2d 241 ).

Moreover, contrary to the defendant's contention, the County Court did not improvidently exercise its discretion in denying his request for a downward departure.A defendant seeking a downward departure from the presumptive risk level has the initial burden of "(1) identifying, as a matter of law, an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the [SORA] Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence"( People v. Wyatt,89 A.D.3d 112, 128, 931 N.Y.S.2d...