Opinion
No. 2007-09200.
December 7, 2010.
Appeal by the defendant from an order of the County Court, Nassau County (Calabrese, J.), dated September 6, 2007, which, after a hearing, designated him as a level two sex offender pursuant to Correction Law article 6-C.
Kent V. Moston, Hempstead, N.Y. (Jeremy L. Goldberg and Dori Cohen of counsel), for appellant.
Kathleen M. Rice, District Attorney, Mineola, N.Y. (Andrew Fukuda of counsel; Adam Citron on the brief), for respondent.
Before: Rivera, J.P., Dickerson, Lott and Román, JJ.
Ordered that the order is affirmed, without costs or disbursements.
Contrary to the defendant's contention, the County Court's designation of him as a level two sex offender under the Sex Offender Registration Act (Correction Law art 6-C; hereinafter SORA) was supported by clear and convincing evidence ( see Correction Law § 168-n). The County Court properly assessed 25 points under risk factor two and 20 points under risk factor four ( see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 9-10 [2006]). The victim's sworn statement and the presentence report, offered by the People at the SORA hearing, constituted "reliable hearsay" (Correction Law § 168-n; see People v Mingo, 12 NY3d 563, 573-574), and provided a sufficient basis for the assessment of those points ( see People v Pettigrew, 14 NY3d 406, 408-409; People v Johnson, 11 AD3d 897).
Moreover, the County Court providently exercised its discretion in denying the defendant's request for a downward departure, as the defendant failed to present clear and convincing evidence of a mitigating factor "of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines" (SORA: Risk Assessment Guidelines and Commentary, at 4 [2006]; see People v Cruz, 74 AD3d 1305, 1306; People v Colavito, 73 AD3d 1004, 1005; People v Bowens, 55 AD3d 809, 810).
The defendant's remaining contentions are unpreserved for appellate review ( see People v Charache, 9 NY3d 829, 830; People v McElhearn, 56 AD3d 978, 979).