Opinion
316 KA 15-00977.
03-31-2017
The PEOPLE of the State of New York, Respondent, v. Kurt A. McCALL, 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.
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.
PRESENT: CARNI, J.P., LINDLEY, DeJOSEPH, TROUTMAN, AND SCUDDER, JJ.
MEMORANDUM:
On appeal from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq. ), defendant contends that County Court erred in failing to grant a downward departure from his presumptive risk level. "Defendant failed to request a downward departure to a level two risk, and thus he failed to preserve for our review his contention that the court erred in failing to afford him that downward departure from his presumptive level three risk" (People v. Quinones, 91 A.D.3d 1302, 1303, 937 N.Y.S.2d 780, lv. denied 19 N.Y.3d 802, 2012 WL 1538352 ; see People v. Havens, 144 A.D.3d 1632, 1632, 42 N.Y.S.3d 708 ; People v. Montanez, 88 A.D.3d 1278, 1280, 930 N.Y.S.2d 380 ; cf. People v. George, 141 A.D.3d 1177, 1178, 35 N.Y.S.3d 625 ).
In any event, we conclude that the facts herein do not warrant a downward departure. "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 A.D.3d 1325, 1325, 995 N.Y.S.2d 890, quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]; see People v. Carlberg, 145 A.D.3d 1646, 1646–1647, 45 N.Y.S.3d 729 ). Defendant failed to identify or establish the existence of any such mitigating factor (see People v. Scone, 145 A.D.3d 1327, 1328, 42 N.Y.S.3d 700 ; Montanez, 88 A.D.3d at 1280, 930 N.Y.S.2d 380 ; see also People v. Finocchiaro, 140 A.D.3d 1676, 1676–1677, 34 N.Y.S.3d 819, lv. denied 28 N.Y.3d 906, 2016 WL 6273217 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.