People v. Callendar

127 A.D.3d 1153, 5 N.Y.S.3d 907

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 29, 2015
• Docket: 2012-03206
• Status: Published

Opinion

Appeal by the defendant from an order of the Supreme Court, Kings County (DiMango, J.), dated March 23, 2012, which, after a hearing, adjudicated him a level two 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, he was properly assessed points for risk factor 14 (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 17 [2006] [hereinafter the Guidelines]). The People demonstrated, by clear and convincing evidence, that the defendant’s release from State custody was not conditioned upon any course of supervision (see People v McNeil, 116 AD3d 1018, 1018 [2014]; People v Rouff, 49 AD3d 517, 517 [2008]; cf. People v Lewis, 37 AD3d 689, 690 [2007]). Furthermore, contrary to the defendant’s contention, the Supreme Court lacked the discretion to downwardly depart from the presumptive risk level, since the defendant failed to identify a mitigating factor not otherwise adequately taken into account by the Guidelines (see People v Sooknanan, 119 AD3d 540, 540 [2014]; People v Reede, 113 AD3d 663, 664 [2014]; People v Martinez, 104 AD3d 924, 925 [2013] ).

Mastro, J.P., Dillon, Hall and Miller, JJ., concur.