Opinion
06-30-2017
The PEOPLE of the State of New York, Respondent, v. Michael PUFF, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Kimberly F. Duguay of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (Kimberly F. Duguay of Counsel), for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM:
On appeal from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act ( Correction Law § 168 et seq. ), defendant contends that County Court erred in assessing 10 points under the risk factor based on the recency of a prior felony offense inasmuch as the prior felony conviction occurred more than three years before the instant offense. We reject that contention. Although the instant offense was committed on October 21, 1998, and defendant was convicted of a prior felony offense more than three years earlier, on March 23, 1995, the presentence report establishes that defendant was sentenced to two separate periods of incarceration during the period between the prior conviction and the date of the instant offense. We conclude that evidence of those two terms of incarceration, one for approximately one year and nine months, and the other for approximately 45 days, is sufficient to "establish[ ] by clear and convincing evidence that defendant was incarcerated for sufficient periods to reduce the time between the conviction for the prior offense and the date of the instant offense to within the requisite three-year period" ( People v. Weathersby, 61 A.D.3d 1382, 1382–1383, 877 N.Y.S.2d 542, lv. denied 13 N.Y.3d 701, 2009 WL 2622096 ).
Defendant failed to preserve for our review his contention that he was entitled to a downward departure to a level one risk inasmuch as he failed to request such a departure (see People v. Ratcliff, 53 A.D.3d 1110, 1110, 862 N.Y.S.2d 686, lv. denied 11 N.Y.3d 708, 868 N.Y.S.2d 600, 897 N.E.2d 1084 ). In any event, we conclude that "defendant failed to establish his entitlement to a downward departure from his presumptive risk level inasmuch as he failed to establish the existence of a mitigating factor by the requisite preponderance of the evidence" ( People v. Nilsen, 148 A.D.3d 1688, 1689, 50 N.Y.S.3d 199, lv. denied 29 N.Y.3d 912, 2017 WL 2468575 [June 8, 2017] ; see generally People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ). It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.