Opinion
No. 2010-03539.
July 12, 2011.
Appeal by the defendant from an order of the Supreme Court, Richmond County (Collini, J.), dated February 5, 2010, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.
Lynn W. L. Fahey, New York, N.Y. (William Kastin of counsel; Christopher B. Servier on the brief), for appellant.
Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and Michael Shollar of counsel), for respondent.
Before: Rivera, J.P., Florio, Austin and Cohen, JJ.
Ordered that the order is affirmed, without costs or disbursements.
"A departure from the presumptive risk level is warranted where `there exists 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 Bussie, 83 AD3d 920, 920-921, lv denied — NY3d —, 2011 NY Slip Op 76743 [2011], quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [2006]; see People v Cruz, 74 AD3d 1305, 1306). Here, the Supreme Court properly determined that the defendant was not entitled to a downward departure and, thus, properly designated the defendant a level three sex offender ( see People v Sivells, 83 AD3d 1027; People v Bussie, 83 AD3d 920).
The defendant's remaining contentions are improperly raised for the first time on appeal.