| People v Mantilla |
| 2010 NY Slip Op 01352 [70 AD3d 477] |
| February 16, 2010 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v LuisMantilla, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Brian E. Rodkey of counsel), forrespondent.
Order, Supreme Court, New York County (Bonnie G. Wittner, J.), entered on or aboutMarch 18, 2008, which adjudicated defendant a level three sex offender and sexually violentoffender pursuant to the Sex Offender Registration Act (SORA) (Correction Law art 6-C),unanimously affirmed, without costs.
Defendant's challenges to his classification as a level three sex offender are improperlyraised for the first time on appeal (CPLR 4017, 5501 [a] [3]; Correction Law § 168-n [3][SORA appeals governed by applicable CPLR provisions]; People v Cassano, 34 AD3d 239 [2006], lv denied 8 NY3d804 [2007]; compare Chateau D' If Corp. v City of New York, 219 AD2d 205, 209[1996], lv denied 88 NY2d 811 [1996]). As an alternative holding, the aggravatingfactors relied upon by the hearing court amply supported its discretionary upward departure, andthey were not duplicative of the risk assessment instrument.
Departures are warranted where "there exists an aggravating or mitigating factor of a kind, orto a degree, that is otherwise not adequately taken into account by the guidelines" (People v Johnson, 11 NY3d 416,421 [2008], quoting Sex Offender Registration Act: Risk Assessment Guidelines andCommentary, at 4 [2006]; see alsoPeople v Inghilleri, 21 AD3d 404, 405-406 [2005]). Here, there are two aggravatingfactors supporting the hearing court's departure from the risk level calculation in the riskassessment instrument. First, contrary to defendant's suggestion, his ability and willingness tovictimize both an extended family member and even his own daughter in this way bespeaks a degreeof depravity indicative of a complete inability to exercise any self-control. Yet a familialrelationship with a victim is not specifically listed as a separate factor in the guidelines.
The victims' tender ages was also an appropriate aggravating factor here. It is irrelevant thatthe hearing court mistakenly recited that the guidelines assign the same point value for anyvictim under 17, when in fact more points are assigned when a victim is under 11; the riskassessment instrument here assigned the proper point value for victims under the age of 11.Nevertheless, the calculation's use of the guidelines' "under 11" category did not adequately take[*2]into account the factor of the victims' ages to an appropriatedegree. A five-year-old victim has a far more limited ability than a 10-year-old to recognize oridentify mistreatment by a trusted adult.
Both the ages of his victims and defendant's gross abuse of the familial trust of such youngchildren when they were left home alone with him constituted proper aggravating factors fullysupporting the hearing court's departure from the risk level calculation in the risk assessmentinstrument (see e.g. People vFerrer, 35 AD3d 297 [2006], lv denied 8 NY3d 807 [2007]; People v Hill, 50 AD3d 990[2008], lv denied 11 NY3d 701 [2008]).
Defendant also argues that his counsel rendered ineffective assistance at the classificationhearing. Assuming, without deciding, that the state and federal standards for effective assistanceat a criminal trial apply to a sex offender adjudication (see People v Reid, 59 AD3d 158 [2009], lv denied 12NY3d 708 [2009]), we conclude that defendant received effective assistance (see People vBenevento, 91 NY2d 708, 713-714 [1998]; see also Strickland v Washington, 466US 668 [1984]). In particular, counsel could have reasonably concluded that there was nodefense to the serious aggravating factors that led to the upward departure (see People vDeFreitas, 213 AD2d 96, 101 [1995], lv denied 86 NY2d 872 [1995]), and defendantwas not prejudiced by the alleged deficiencies in counsel's performance.Concur—Gonzalez, P.J., Saxe, McGuire, Manzanet-Daniels and RomÁn, JJ.
Motion seeking to strike portions of respondent's brief granted.