| People v Lucius |
| 2014 NY Slip Op 07996 [122 AD3d 819] |
| November 19, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Ervin Lucius, Appellant. |
Seymour W. James, Jr., New York, N.Y. (Bonnie C. Brennan of counsel), forappellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andLinda Breen of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County(DiMango, J.), dated August 7, 2012, which, after a hearing, designated him a level twosexually violent offender pursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
In establishing a defendant's risk level pursuant to the Sex Offender Registration Act(see Correction Law art 6-C [hereinafter SORA]), the People bear the burden ofestablishing, by clear and convincing evidence, the facts supporting the determinationssought (see Correction Law § 168-n [3]; see also SexOffender Registration Act: Risk Assessment Guidelines and Commentary at 5 [2006][hereinafter SORA Guidelines]; People v Finizio, 100 AD3d 977, 977 [2012]). "Inassessing points, evidence may be derived from the defendant's admissions, the victim'sstatements, evaluative reports completed by the supervising probation officer, paroleofficer, or corrections counselor, case summaries prepared by the Board of Examiners ofSex Offenders . . . or any other reliable source, including reliable hearsay"(People v Crandall, 90AD3d 628, 629 [2011]).
Contrary to the defendant's contention, the People established, by clear andconvincing evidence, that he engaged in a continuing course of sexual misconduct withthe seven-year-old victim. The evidence established that the defendant committed two ormore acts of sexual misconduct, at least one of which included sexual intercourse, over aperiod greater than 24 hours (see SORA Guidelines at 10; People v Thompson, 111AD3d 613 [2013]; People vTaylor, 48 AD3d 775 [2008]). Accordingly, 20 points were properly assessedagainst the defendant under risk factor four, based on a continuing course of sexualmisconduct.
The Supreme Court providently exercised its discretion in denying the defendant'srequest for a downward departure from his presumptive risk level designation, as therecord does not reflect the existence of a mitigating factor warranting a downwarddeparture. Under the circumstances of this case, the defendant's age did not warrant adownward departure from his presumptive risk level (see People v Grubbs, 107 AD3d 771, 773 [2013]; People v Harris, 93 AD3d704, 705 [2012]).
[*2] The defendant'sremaining contention, relating to the points assessed under risk factor two, is unpreservedfor appellate review, and, in any event, without merit.
Accordingly, the defendant was properly designated a level two sexually violentoffender. Mastro, J.P., Hall, Roman and Maltese, JJ., concur.