Opinion
2012-05958.
02-03-2016
PEOPLE of State of New York, respondent, v. Julio TORRES, appellant.
Lynn W.L. Fahey, New York, N.Y. (Kathleen Whooley of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Anthea H. Bruffee, and Daniel Berman of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Kathleen Whooley of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Anthea H. Bruffee, and Daniel Berman of counsel), for respondent.
Opinion
Appeal by the defendant from an order of the Supreme Court, Kings County (Brennan, J.), dated June 18, 2012, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6–C.
ORDERED that the order is affirmed, without costs or disbursements.
Contrary to the defendant's contention, the People adduced clear and convincing evidence supporting the assessment of 15 points under risk factor 12 based on his failure to attend mandated psychosexual treatment, which resulted in the defendant violating his probation and being returned to jail (see People v. Mingo, 12 N.Y.3d 563, 571, 883 N.Y.S.2d 154, 910 N.E.2d 983; People v. McFall, 93 A.D.3d 962, 963, 939 N.Y.S.2d 723).
The defendant's contention that the Supreme Court should not have considered a youthful offender adjudication in assessing him 30 points under risk factor 9 is unpreserved for appellate review (see People v. Duart, 84 A.D.3d 908, 908–909, 923 N.Y.S.2d 149) and, in any event, without merit (see People v. Francis, ––– A.D.3d –––, ––– N.Y.S.3d ––––, 2016 N.Y. Slip Op. 00488, 2016 WL 313393 2d Dept.2016; People v. Torres, 103 A.D.3d 868, 959 N.Y.S.2d 672; cf. People v. Campbell, 98 A.D.3d 5, 946 N.Y.S.2d 587).
The Supreme Court properly determined that the defendant was not entitled to a downward departure (see People v. Belile, 108 A.D.3d 890, 891, 969 N.Y.S.2d 228; People v. Fryer, 101 A.D.3d 835, 836, 955 N.Y.S.2d 407; People v. Wyatt, 89 A.D.3d 112, 931 N.Y.S.2d 85).
The defendant's remaining contention is without merit.
LEVENTHAL, J.P., CHAMBERS, HALL and DUFFY, JJ., concur.