Opinion
No. 570090/17
10-23-2023
The People of the State of New York, Respondent, v. Rason Petterson, Defendant-Appellant.
Unpublished Opinion
PRESENT: Brigantti, J.P., Tisch, Michael, JJ.
PER CURIAM.
Defendant appeals from an order of the Criminal Court of the City of New York, New York County (Lyle E. Frank, J.), dated January 27, 2017, which, after a hearing, designated him a level two sex offender under the Sex Offender Registration Act (Correction Law art 6-C).
Order (Lyle E. Frank, J.), dated January 27, 2017, affirmed.
The court providently exercised its discretion when it declined to grant a downward departure (see People v Gillotti, 23 N.Y.3d 841 [2014]). The mitigating factor cited by defendant and properly preserved for review - i.e his release to the Intensive Mobile Treatment Center ("IMT") as a result of a separate non-qualifying conviction, was outweighed by other aggravating factors that weigh against a downward departure (see People v Sincerbeaux, 27 N.Y.3d 683, 690 [2016). These factors include defendant's extensive criminal history that encompassed two forcible touching convictions, the second of which involved an incident that occurred less than two months after his first conviction (see People v Diaz, 69 Misc.3d 132 [A], 2020 NY Slip Op 51210[U] [App Term, 1st Dept 2020], affd 210 A.D.3d 442 [2022]).
Defendant's contention that he was entitled to a downward departure because he was overassessed 40 points for the prior sex crime and the recency of that crime was not raised at the SORA hearing, and is therefore unpreserved for appellate review (see People v Rosales, 133 A.D.3d 733 [2015], lv denied 26 N.Y.3d 919 [2016]; People v Brown, 122 A.D.3d 536 [2014], lv denied 24 N.Y.3d 915 [2015]). In any event, the claim is without merit, as the prior sex crime and its recency are taken into account under risk factors 9 and 10 (see People v Garcia, 192 A.D.3d 833 [2021], lv denied 37 N.Y.3d 910 [2021]; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary [2006]), and defendant failed to demonstrate any overassessment of the risk he posed to public safety or risk of reoffense.