Opinion
2014–07615
12-27-2017
PEOPLE of State of New York, respondent, v. Samuel SAMUEL, appellant.
Paul Skip Laisure, New York, N.Y. (William Kastin of counsel; Lauren Margolies on the brief), for appellant. Michael E. McMahon, District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and Anne Grady of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (William Kastin of counsel; Lauren Margolies on the brief), for appellant.
Michael E. McMahon, District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and Anne Grady of counsel), for respondent.
REINALDO E. RIVERA, J.P., L. PRISCILLA HALL, ROBERT J. MILLER, COLLEEN D. DUFFY, JJ.
DECISION & ORDER Appeal by the defendant from an order of the Supreme Court, Richmond County (Rooney, J.), dated July 23, 2014, 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.
The defendant appeals from his designation as a level three sex offender pursuant to the Sex Offender Registration Act (see Correction Law art 6–C).
Since the defendant had already been released from incarceration before he became classified as a "sex offender" as a result of his conviction ( Correction Law § 168–a[1] ), the Supreme Court did not err in determining the defendant's risk level based on a risk assessment instrument prepared by the District Attorney's office instead of the Board of Examiners of Sex Offenders (see Correction Law §§ 168–d[3] ; 168–l[8]; People v. Jean–Bart, 145 A.D.3d 690, 691, 41 N.Y.S.3d 906 ; People v. Grimm, 107 A.D.3d 1040, 1042–1043, 967 N.Y.S.2d 189 ).
The Supreme Court properly denied the defendant's application for a downward departure from his presumptive risk level designation, as he failed to establish the existence of any mitigating circumstances that are of a kind or to a degree not adequately taken into account by the Guidelines (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary [2006]; People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Rocano–Quintuna, 149 A.D.3d 1114, 1115, 53 N.Y.S.3d 170 ; People v. Santiago, 137 A.D.3d 762, 765, 26 N.Y.S.3d 339 ; People v. McKee, 66 A.D.3d 854, 855, 888 N.Y.S.2d 103 ). The defendant's remaining contention is unpreserved for appellate review and, in any event, without merit.
RIVERA, J.P., HALL, MILLER and DUFFY, JJ., concur.