Opinion
No. 2024-51343
09-30-2024
The People of the State of New York, Respondent, v. Derec Appiahkubi, Defendant-Appellant.
Unpublished Opinion
PRESENT: Hagler, P.J., Brigantti, Tisch, JJ.
PER CURIAM.
Defendant appeals from an order of the Criminal Court of the City of New York, New York County (David Frey, J.), entered February 2, 2018, which, after a hearing, adjudicated him a level two sex offender and a predicate sex offender pursuant to the Sex Offender Registration Act (Correction Law art. 6-C).
Order (David Frey, J.), entered February 2, 2018, modified, on the law, by vacating the determination that defendant is a predicate sex offender and, as modified, affirmed.
The record supports the level two sex offender adjudication. Defendant's contention relating to the assessment of points under risk factor 12 for not having accepted responsibility is unpreserved for appellate review, and we decline to reach it in the interest of justice (see People v Toussaint, 185 A.D.3d 742, 743 [2020], lv denied 35 N.Y.3d 916 [2020]; People v Grigg, 112 A.D.3d 802 [2013], lv denied 22 N.Y.3d 865 [2014]). At the SORA hearing, defense counsel only challenged the assessment of 30 points under risk factor 9, and did not object to the assessment of points in all other categories, including risk factor 12 (see People v Echols, 207 A.D.3d 478 [2022]).
Defendant's challenge to the full 30-point assessment based upon his prior criminal history is improperly made for the first time in a reply brief, and is, in any event, without merit, since he was previously convicted of the misdemeanor sex crimes of forcible touching and third-degree sexual abuse (see People v DeJean, 205 A.D.3d 460, 460-461 [2022], lv denied 39 N.Y.3d 914 [2022]; People v Kager, 42 A.D.3d 944, 945 [2007]).
As the People concede, the court erred in classifying defendant as a predicate sex offender.
All concur.