People v. Holmes
| Decision Date | 14 November 2018 |
| Docket Number | 2017–04941 |
| Parties | PEOPLE of State of New York, Respondent, v. Brian HOLMES, Appellant. |
| Court | New York Supreme Court — Appellate Division |
The Legal Aid Society, New York, N.Y. (Richard Joselson of counsel; Jose David Rodriguez–Gonzalez on the brief), for appellant.
Michael E. McMahon, District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and Alexander Fumelli of counsel), for respondent.
MARK C. DILLON, J.P., SHERI S. ROMAN, JOSEPH J. MALTESE, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
ORDERED that the order is affirmed, without costs or disbursements.
The defendant appeals from an order, made after a hearing, designating him a level three sex offender pursuant to the Sex Offender Registration Act (see Correction Law art 6–C; hereinafter SORA).
In establishing a defendant's risk level pursuant to SORA, the People bear the burden of establishing the facts supporting the determinations sought by clear and convincing evidence (see Correction Law § 168–n[3] ; People v. LeGrand, 152 A.D.3d 722, 55 N.Y.S.3d 905 ; People v. Crandall, 90 A.D.3d 628, 629, 934 N.Y.S.2d 446 ). Here, contrary to the defendant's contention, he was properly assessed 20 points under risk factor 6 (other victim characteristics), since the People established, by clear and convincing evidence, that the complainant was physically helpless (see People v. Jones, 101 A.D.3d 836, 837, 954 N.Y.S.2d 918 ; see also People v. Teicher, 52 N.Y.2d 638, 646, 439 N.Y.S.2d 846, 422 N.E.2d 506 ; cf. People v. Cecunjanin, 16 N.Y.3d 488, 493, 922 N.Y.S.2d 258, 947 N.E.2d 149 ).
Furthermore, we agree with the Supreme Court's assessment of 10 points against the defendant under risk factor 13 (conduct while confined or supervised), since the People established, by clear and convincing evidence, inter alia, that the defendant had a recent tier III disciplinary violation during his incarceration (see People v. Lima–Sanchez, 162 A.D.3d 698, 698–699, 79 N.Y.S.3d 52 ; People v. Williams, 100 A.D.3d 610, 611, 953 N.Y.S.2d 298 ; People v. Mabee, 69 A.D.3d 820, 821, 893 N.Y.S.2d 585 ).
The defendant's remaining contentions are without merit.
Accordingly, we agree with the Supreme Court's determination designating the defendant a level three sex offender.
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