| People v Sally |
| 2013 NY Slip Op 02647 [105 AD3d 567] |
| April 18, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Ronald Sally, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Ravi Kantha of counsel), forrespondent.
Order, Supreme Court, Bronx County (Ethan Greenberg, J.), entered on or about July6, 2010, which adjudicated defendant a level two sexually violent offender pursuant tothe Sex Offender Registration Act (Correction Law art 6-C), and order, same court(Megan Tallmer, J.), entered on or about February 16, 2012, which effectively denieddefendant's motion for renewal, and also denied defendant's Correction Law §168-o petition for modification, unanimously affirmed, without costs.
The People met their burden of proving, by clear and convincing evidence, the riskfactor for sexual intercourse. Although defendant was permitted to plead guilty tofirst-degree sexual abuse in the underlying case, the victim's grand jury testimonyconstituted "reliable hearsay" (Correction Law § 168-n [3]) that satisfied thePeople's burden (see People vMingo, 12 NY3d 563, 572-574, 576-577 [2009]) and established the element ofpenetration.
The record relating to the February 16, 2012 order establishes that the courteffectively denied renewal, and that the denial was proper given that defendant failed toexplain why, had he exercised due diligence, the allegedly new evidence could not havebeen presented at the original hearing (see CPLR 2221 [e] [3]). To the extent thecourt deemed defendant's motion to renew to be a request for modification underCorrection Law § 168-o, it properly required defendant to establishwhether he was entitled to a downward departure by clear and convincing evidence (People v Conway, 47 AD3d492 [1st Dept 2008], lv denied 10 NY3d 708 [2008]). In any event,regardless of how the proceedings are characterized, we find no basis for a discretionarydeparture (see People vPettigrew, 14 NY3d 406, 409 [2010]; Mingo, 12 NY3d at 568 n 2; People v Johnson, 11 NY3d416, 421 [2008]) to level one. The underlying sex crime [*2]was committed against a 10-year-old child, and defendant'sarguments regarding mitigating factors are unpersuasive. In particular, defendant citesmedical conditions that did not prevent him from committing the underlying crime.Concur—Tom, J.P., Sweeny, Saxe, Román and Feinman, JJ.