Opinion
2017–07069
07-11-2018
PEOPLE of State of New York, respondent, v. Dennis HOGAN, appellant.
Laurette D. Mulry, Riverhead, N.Y. (Kirk R. Brandt of counsel), for appellant. Timothy D. Sini, District Attorney, Riverhead, N.Y. (Karla Lato of counsel), for respondent.
Laurette D. Mulry, Riverhead, N.Y. (Kirk R. Brandt of counsel), for appellant.
Timothy D. Sini, District Attorney, Riverhead, N.Y. (Karla Lato of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
Appeal by the defendant from an order of the County Court, Suffolk County (Barbara Kahn, J.), dated June 16, 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 appeals from an order, made after a hearing, designating him a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C; hereinafter SORA). He contends that the County Court should have granted his application for a downward departure from his presumptive risk level.
To the extent the defendant contends that his age is a mitigating factor warranting a downward departure, his contention is unpreserved for appellate review, because he did not raise that ground at the hearing (see People v. Destio, 145 A.D.3d 1047, 1048, 45 N.Y.S.3d 487 ; People v. Figueroa, 138 A.D.3d 708, 709, 27 N.Y.S.3d 885 ). In any event, the defendant failed to demonstrate that his age at the time of the SORA determination resulted in the overassessment of his risk to public safety, and, thus, he did not meet his burden of establishing that this mitigating circumstance actually existed here (see People v. Dipilato, 155 A.D.3d 792, 793, 63 N.Y.S.3d 525 ; People v. Rocano–Quintuna, 149 A.D.3d 1114, 1115, 53 N.Y.S.3d 170 ).
Moreover, although the assessment of points under risk factors 3 and 7 may result in an overassessment of a defendant's risk to public safety in some cases involving offenders who possessed child pornography, under the circumstances of this case, the County Court providently exercised its discretion in denying the defendant's application for a downward departure (see People v. Young, 152 A.D.3d 628, 628, 55 N.Y.S.3d 661 ; People v. Reuter, 140 A.D.3d 1143, 1143, 33 N.Y.S.3d 757 ; see also People v. Rossano, 140 A.D.3d 1042, 1043, 35 N.Y.S.3d 364 ).
Accordingly, we agree with the County Court's determination designating the defendant a level two sex offender.
LEVENTHAL, J.P., COHEN, HINDS–RADIX and CONNOLLY, JJ., concur.