People v. Alston

86 A.D.3d 553, 926 N.Y.2d 901

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 12, 2011
• Status: Published

Opinion

“A departure from the presumptive risk level is warranted where ‘there exists an aggravating or mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines’ ” (People v Bussie, 83 AD3d 920, 920-921 [2011], Iv denied 17 NY3d 704 [2011], quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [2006]; see People v Cruz, 74 AD3d 1305, 1306 [2010]). Here, the Supreme Court properly determined that the defendant was not entitled to a downward departure and, thus, properly designated the defendant a level three sex offender (see People v Sivells, 83 AD3d 1027 [2011]; People v Bussie, 83 AD3d 920 [2011]).

The defendant’s remaining contentions are improperly raised for the first time on appeal. Rivera, J.E, Florio, Austin and Cohen, JJ., concur.