Opinion
939 KA 20-01377
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.
MEMORANDUM AND ORDER
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, 989 N.Y.S.2d 766 [4th Dept. 2014], lv denied 24 N.Y.3d 905, 2014 WL 4637185 [2014] ; see People v. Sofo , 168 A.D.3d 891, 892, 90 N.Y.S.3d 290 [2d Dept. 2019], lv denied 33 N.Y.3d 905, 2019 WL 2049894 [2019] ; see generally People v. Gillotti , 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [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, 137 N.Y.S.3d 781 [4th Dept. 2021] ; People v. Iverson , 90 A.D.3d 1561, 1562, 936 N.Y.S.2d 408 [4th Dept. 2011], lv denied 18 N.Y.3d 811, 2012 WL 1432180 [2012] ).
We have reviewed defendant's remaining contention and conclude that it does not warrant reversal or modification of the order.