People v. Johnson

130 A.D.3d 454, 11 N.Y.S.3d 486

Opinion

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 [2013]). Concur— Tom, J.P., Andrias, Feinman, Gische and Kapnick, JJ.