People v. Diaz

61 A.D.3d 465, 875 N.Y.S.2d 892

Opinion

Order, Supreme Court, New York County (Roger S. Hayes, J.), entered on or about February 8, 2008, which adjudicated defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The People met their burden of establishing, by clear and convincing evidence, risk factors bearing a sufficient total point score to support a level two sex offender adjudication. The court properly assessed points under the factor for lack of supervised release, even though this was a matter beyond defendant’s control (see People v Lewis, 37 AD3d 689, 690 [2007], lv denied 8 NY3d 814 [2007]). The court properly exercised its discretion in denying defendant a downward departure from his presumptive risk level (see People v Guaman, 8 AD3d 545 [2004]). Defendant’s remaining contentions are unpreserved and merit-less. Concur—Gonzalez, EJ., Tom, Sweeny, Catterson and Renwick, JJ.