People v. Brown

Appeal by the defendant from an order of the Supreme Court, Kings County (DiMango, J.), dated January 14, 2013, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.

Ordered that the order is affirmed, without costs or disbursements.

Contrary to the defendant’s contention, the People proved by clear and convincing evidence that he was properly assessed *521 points under risk factor six, based on the victim’s mental disability (see People v Leeks, 43 AD3d 1251 [2007]; cf. People v Green, 104 AD3d 1222 [2013]). In addition, the defendant’s contention that the assessment of points under risk factors five (age of victim) and six constituted improper double counting is unpreserved for appellate review (see People v Jones, 101 AD3d 836 [2012]; People v Fredlund, 38 AD3d 636 [2007]) and, in any event, without merit (see People v Caban, 61 AD3d 834, 835 [2009]). The Supreme Court properly assessed points under risk factor 12 based upon the defendant’s removal from treatment programs for disciplinary reasons while incarcerated (see People v DeCastro, 101 AD3d 693 [2012]; People v Peana, 68 AD3d 737 [2009]; People v Orengo, 40 AD3d 609, 610 [2007]).

The defendant’s remaining contention is without merit.

Accordingly, the Supreme Court properly designated the defendant a level three sex offender (see People v Grubbs, 107 AD3d 771 [2013]; People v Lacewell, 103 AD3d 784 [2013]).