Opinion
No. 9901.
December 21, 2006.
Order, Supreme Court, New York County (Ruth L. Sussman, J.), entered on or about February 28, 2005, which adjudicated defendant a level three sex offender, unanimously affirmed, without costs.
Laura R. Johnson, The Legal Aid Society, New York (Michael C. Taglieri of counsel), for appellant.
Robert M. Morgenthau, District Attorney, New York (Shery Feldman of counsel), for respondent.
Before: Tom, J.P., Marlow, Williams, Gonzalez and Catterson, JJ.
Defendant's argument that the court incorrectly assessed certain risk factor points is academic, because it is undisputed that even without the five points at issue, defendant would still qualify as a level three sex offender. Defendant's argument for a downward departure is unpreserved because he made no such request to the hearing court. In any event, there is no basis in the record for such a departure ( see People v Mabb, 32 AD3d 1135).