People v. DeJesus

127 A.D.3d 1047, 5 N.Y.S.3d 893

Opinion

Appeal by the defendant from an order of the Supreme Court, Queens County (Koenderman, J.), dated June 25, 2012, which, after a hearing, designated 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, in determining his risk level under the Sex Offender Registration Act (Correction Law art 6-C), the Supreme Court properly assessed 20 points against him under risk factor 4 for engaging in a continuing course of sexual misconduct against the victim. Here, the sworn felony complaint constituted “reliable hearsay” (People v Mingo, 12 NY3d 563, 576 [2009]; see People v Patronick, 117 AD3d 1018, 1019 [2014]; People v Townsend, 60 AD3d 655, 656 [2009]) and provided clear and convincing evidence to warrant the assessment of the challenged points (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 10 [2006]; People v Patronick, 117 AD3d 1018, 1019 [2014]).

The defendant failed to preserve his contention that a downward departure from the presumptive risk level was warranted (see People v Estrella, 90 AD3d 879 [2011]; People v Spring, 83 AD3d 1028 [2011]; People v Iorio, 74 AD3d 1306, 1307 [2010]). In any event, under the circumstances of this case, the defendant’s age did not warrant a downward departure from his presumptive risk level (see People v Lucius, 122 AD3d 819, 820 [2014]; People v Grubbs, 107 AD3d 771, 773 [2013]; People v Harris, 93 AD3d 704, 706 [2012]), and the remaining factors upon which he relied were already taken into account by the Guidelines (see People v Torres, 124 AD3d 744 [2015]; see generally People v Gillotti, 23 NY3d 841, 861 [2014]).

Accordingly, the defendant was properly designated a level two sex offender.

Skelos, J.P., Dillon, Austin and Hinds-Radix, JJ., concur.