Opinion
836 KA 18–00096
06-29-2018
The PEOPLE of the State of New York, Respondent, v. John Seeley PHILLIPS, Jr., Defendant–Appellant.
D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT–APPELLANT. KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN (PATRICIA L. DZIUBA OF COUNSEL), FOR RESPONDENT.
D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT–APPELLANT.
KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN (PATRICIA L. DZIUBA OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, DEJOSEPH, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
Appeal from an order of the Jefferson County Court (Kim H. Martusewicz, J.), entered August 14, 2007. The order determined that defendant is a level two risk pursuant to the Sex Offender Registration Act.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: On appeal from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act ( [SORA] Correction Law § 168 et seq. ), defendant contends that County Court erred in assessing points under risk factor 11 of the risk assessment instrument. Defendant's contention is not preserved for our review (see People v. Saraceni, 153 A.D.3d 1561, 1561, 60 N.Y.S.3d 870 [4th Dept. 2017], lv denied 30 N.Y.3d 1119, 77 N.Y.S.3d 344, 101 N.E.3d 985 [2018] ). In any event, we conclude that the court properly assessed 15 points under risk factor 11 for a history of drug or alcohol abuse inasmuch as " ‘[t]he SORA guidelines justify the addition of 15 points under risk factor 11 if an offender has a substance abuse history or was abusing drugs [and/or] alcohol at the time of the offense’ " ( People v. Kunz, 150 A.D.3d 1696, 1697, 53 N.Y.S.3d 788 [4th Dept. 2017], lv denied 29 N.Y.3d 916, 2017 WL 3908167 [2017] ).
Defendant also failed to preserve for our review his contention that he was entitled to a downward departure (see People v. Puff, 151 A.D.3d 1965, 1966, 57 N.Y.S.3d 864 [4th Dept. 2017], lv denied 30 N.Y.3d 904, 2017 WL 4782708 [2017] ). In any event, we conclude that " ‘defendant failed to establish his entitlement to a downward departure from his presumptive risk level inasmuch as he failed to establish the existence of a mitigating factor by the requisite preponderance of the evidence’ " ( id. ).
Finally, we reject defendant's contention that he was denied the right to effective assistance of counsel (see People v. Allport, 145 A.D.3d 1545, 1545–1546, 44 N.Y.S.3d 289 [4th Dept. 2016] ).