Opinion
2017-01683.
11-15-2017
PEOPLE of State of New York, Respondent, v. Luis RODRIGUEZ, Appellant.
Laurette D. Mulry, Riverhead, NY (Kirk R. Brandt of Counsel), for appellant. Emily Constant, Acting District Attorney, Riverhead, NY (Glenn Green of Counsel), for respondent.
Laurette D. Mulry, Riverhead, NY (Kirk R. Brandt of Counsel), for appellant.
Emily Constant, Acting District Attorney, Riverhead, NY (Glenn Green of Counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Suffolk County (Kahn, J.), dated January 6, 2017, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6–C.
ORDERED that the order is affirmed, without costs or disbursements.
The defendant pleaded guilty to two counts of possessing a sexual performance by a child less than 16 years of age. After a hearing pursuant to the Sex Offender Registration Act (see Correction Law art 6–C), the Supreme Court determined that the defendant was a presumptive level two sex offender based on his total score on the risk assessment instrument, and designated him a level two sex offender. On appeal, the defendant contends that the court erred in assessing 20 points under risk factor 7 (relationship with victim), and that the court should have downwardly departed from the presumptive risk level and designated him a level one sex offender.
Contrary to the defendant's contention, he was properly assessed 20 points under risk factor 7 based upon his conviction of possessing a sexual performance by a child less than 16 years of age in violation of Penal Law § 263.16 (see People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Johnson, 11 N.Y.3d 416, 872 N.Y.S.2d 379, 900 N.E.2d 930 ; People v. Vansteen, 140 A.D.3d 721, 30 N.Y.S.3d 887 ; People v. Morel–Baca, 127 A.D.3d 833, 4 N.Y.S.3d 893 ).
The defendant never argued before the Supreme Court that he was entitled to a downward departure, and did not present any mitigating factors to the court. Therefore, his contention on appeal that the court should have granted him a downward departure is unpreserved for appellate review (see People v. Moran, 148 A.D.3d 1189, 50 N.Y.S.3d 502 ; People v. Broadus, 142 A.D.3d 595, 596, 36 N.Y.S.3d 601 ). In any event, the defendant's contention is without merit (see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ).
Accordingly, the Supreme Court properly designated the defendant a level two sex offender.
ENG, P.J., ROMAN, MILLER and CHRISTOPHER, JJ., concur.