People v. Destio

2016 NY Slip Op 8889, 145 A.D.3d 1047, 45 N.Y.S.3d 487

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 28, 2016
• Docket: 2012-08326
• Status: Published

Opinion

Appeal by the defendant from an order of the County Court, Nassau County (O’Brien, J.), dated August 13, 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.

By order dated August 13, 2012, the County Court, after a hearing, designated the defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law 6-C). The defendant appeals.

Contrary to the defendant’s contention, the hearing court properly assessed 20 points under risk factor 3 and 30 points under risk factor 5. To the extent the defendant now challenges the assessment of points under risk factor 3 based on a position statement issued by the Board of Examiners of Sex Offenders in 2012, his contention is unpreserved for appellate review, since he did not raise this ground at the hearing (see People v Fryer, 101 AD3d 835, 835 [2012]) and, in any event, without merit (see People v Gillotti, 23 NY3d 841, 845 [2014]; People v Brown, 116 AD3d 1017, 1017 [2014]). Further, the People established, by clear and convincing evidence, that there were two victims. Moreover, the defendant’s challenge to the proof supporting the assessment of points under risk factor 5 is unavailing. In assessing points, evidence may be derived from reliable hearsay (see People v Mingo, 12 NY3d 563 [2009]; People v Dash, 111 AD3d 907, 908-909 [2013]; People v Crandall, 90 AD3d 628, 629 [2011]), and information in a pre-sentence investigation report (hereinafter PSI report) may constitute reliable hearsay (see People v Mingo, 12 NY3d at 573). Here, the recitation in the PSI report of the information contained in a pediatric expert’s report constituted reliable hearsay under the circumstances presented (see generally People v Mingo, 12 NY3d at 574).

To the extent the defendant contends that a claimed over-assessment under risk factors 3 and 5 warrants a downward departure, his contention is unpreserved for appellate review, since he did not raise this ground at the hearing (see People v Figueroa, 138 AD3d 708, 708 [2016]). In any event, the County Court properly determined that the defendant was not entitled to a downward departure (see People v Grabowski, 142 AD3d 697, 698 [2016]; People v Quinones, 138 AD3d 1082, 1083 [2016]).

The defendant’s remaining contention is without merit.

Leventhal, J.P., Cohen, Miller and Connolly, JJ., concur.