Opinion
2021-06284
11-12-2021
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. WESLEY A. SMITH, DEFENDANT-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, WINSLOW, AND BANNISTER, JJ.
Appeal from an order of the Monroe County Court (Michael L. Dollinger, J.), entered September 25, 2020. The order determined that defendant is a level two risk pursuant to the Sex Offender Registration Act.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: On appeal from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act ([SORA] Correction Law § 168 et seq.), defendant contends that County Court erred in failing to grant a downward departure from his presumptive classification as a level two risk. Contrary to defendant's contention, "the remoteness of his prior felony conviction is adequately taken into account by the risk assessment instrument and therefore is not, as a matter of law, a mitigating factor to be considered by the court in departing from the presumptive risk level" (People v Jewell, 119 A.D.3d 1446, 1448-1449 [4th Dept 2014], lv denied 24 N.Y.3d 905 [2014]; see People v Sofo, 168 A.D.3d 891, 892 [2d Dept 2019], lv denied 33 N.Y.3d 905 [2019]; see generally People v Gillotti, 23 N.Y.3d 841, 861 [2014]). Defendant's further contention regarding the merits of his request for a downward departure is not preserved for our review because defendant did not advance the ground underlying that specific contention during the SORA hearing (see People v Burgess, 191 A.D.3d 1256, 1256-1257 [4th Dept 2021]; People v Iverson, 90 A.D.3d 1561, 1562 [4th Dept 2011], lv denied 18 N.Y.3d 811 [2012]).
We have reviewed defendant's remaining contention and conclude that it does not warrant reversal or modification of the order.