SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

335 

KA 15-01448 

PRESENT: WHALEN, P.J., SMITH, CARNI, LINDLEY, AND NEMOYER, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

JAMAL ASFOUR, DEFENDANT-APPELLANT. 

 

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF

COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from an order of the Supreme Court, Monroe County (Daniel

J. Doyle, J.), entered July 2, 2015. The order determined that

defendant is a level three risk pursuant to the Sex Offender

Registration Act. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Defendant appeals from an order determining that he

is a level three risk pursuant to the Sex Offender Registration Act

([SORA] Correction Law § 168 et seq.). We reject defendant’s

contention that he should not have been assessed 30 points under risk

factor 5, age of victim, because the People did not establish the

victim’s age as being less than 11 years of age by clear and

convincing evidence. Defendant pleaded guilty to course of sexual

conduct against a child in the first degree under Penal Law § 130.75

(1) (a), a necessary element of which is that the victim be a child

less than 11 years old. Because “[f]acts previously . . . elicited at

the time of entry of a plea of guilty shall be deemed established by

clear and convincing evidence and shall not be relitigated” for

purposes of a SORA determination (Correction Law § 168-n [3]), Supreme

Court properly assessed 30 points under risk factor 5 (see People v

Benitez, 140 AD3d 1140, 1141, lv denied 28 NY3d 908; see generally

People v Law, 94 AD3d 1561, 1562, lv denied 19 NY3d 809). 

We agree with defendant, however, that the People failed to

establish by the requisite clear and convincing evidence that he

should be assessed 20 points under risk factor 13 based upon his

conduct while under supervision. Although the People established at

the SORA hearing that defendant committed the instant offense while

under supervision for a prior conviction of criminal sexual act in the

first degree, risk factor 13 is concerned with a sex offender’s
-2- 335 

KA 15-01448 

post-offense behavior while supervised (see People v Neuer, 86 AD3d

926, 927, lv denied 17 NY3d 716; see generally People v Warren, 42

AD3d 593, 594-595, lv denied 9 NY3d 810). Because there is no

indication that defendant engaged in any inappropriate behavior while

supervised for the present offense, we conclude that the court erred

in assessing the 20 points under risk factor 13 (see Neuer, 86 AD3d at

927). Nonetheless, defendant remains a level three risk, even

subtracting those 20 points from the total of 145 points assessed by

the court.

We reject defendant’s further contention that the court abused

its discretion in denying his request for a downward departure from

the presumptive risk level. “A departure from the presumptive risk

level is warranted if there is ‘an aggravating or mitigating factor of

a kind, or to a degree, that is otherwise not adequately taken into

account by the guidelines’ ” (People v Smith, 122 AD3d 1325, 1325,

quoting Sex Offender Registration Act: Risk Assessment Guidelines and

Commentary at 4 [2006] [guidelines]; see People v Carlberg, 145 AD3d

1646, 1646-1647). Contrary to defendant’s contention, his young age

at the time of his first sex offense is already taken into account by

the guidelines, as an aggravating factor under factor 8 (see People v

Rodriguez, 145 AD3d 489, 490, lv denied 28 NY3d 916). Additionally,

defendant failed to submit any evidence that his alleged low IQ was a

factor that reduced his risk of reoffending (see generally People v

Grady, 81 AD3d 1464, 1465). 

Entered: March 24, 2017 Frances E. Cafarell

Clerk of the Court