Opinion
2016–09653
12-13-2017
PEOPLE of State of New York, respondent, v. Richard NOEKER, appellant.
Laurette D. Mulry, Riverhead, N.Y. (Kirk R. Brandt of counsel), for appellant. Emily Constant, Acting District Attorney, Riverhead, N.Y. (Rosalind C. Gray of counsel), for respondent.
Laurette D. Mulry, Riverhead, N.Y. (Kirk R. Brandt of counsel), for appellant.
Emily Constant, Acting District Attorney, Riverhead, N.Y. (Rosalind C. Gray of counsel), for respondent.
MARK C. DILLON, J.P., JEFFREY A. COHEN, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.
DECISION & ORDERAppeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), dated August 10, 2016, 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 challenges his designation as a level two sex offender pursuant to the Sex Offender Registration Act (see Correction Law art 6–C [hereinafter SORA] ) following his conviction upon a plea of guilty to 8 counts of promoting a sexual performance by a child in violation of Penal Law § 263.15 and 21 counts of possessing a sexual performance by a child in violation of Penal Law § 263.16.
The defendant's contention that the County Court improperly assessed 30 points under risk factor 3 (number of victims) is unpreserved for appellate review, since he did not raise this issue at the SORA hearing (see People v. Destio, 145 A.D.3d 1047, 1048, 45 N.Y.S.3d 487 ). In any event, this contention is without merit (see People v. Gillotti, 23 N.Y.3d 841, 845, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Nethercott, 119 A.D.3d 918, 989 N.Y.S.2d 900 ; People v. Brown, 116 A.D.3d 1017, 983 N.Y.S.2d 900 ). Further, contrary to the defendant's contention, the court properly assessed 20 points under risk factor 7 (relationship with victim) (see People v. Gillotti, 23 N.Y.3d at 854, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Johnson, 11 N.Y.3d 416, 418–420, 872 N.Y.S.2d 379, 900 N.E.2d 930 ; People v. Nethercott, 119 A.D.3d 918, 989 N.Y.S.2d 900 ; People v. Brown, 116 A.D.3d 1017, 983 N.Y.S.2d 900 ).
The defendant's contention that he was entitled to a downward departure is unpreserved for appellate review because he did not request a downward departure from his presumptive designation as a level two sex offender during the SORA hearing (see People v. Sweat, 147 A.D.3d 802, 802, 45 N.Y.S.3d 800 ). In any event, this contention is without merit (see id.).
DILLON, J.P., COHEN, CONNOLLY and CHRISTOPHER, JJ., concur.