People v. Moore

16 A.D.3d 190, 792 N.Y.S.2d 386, 2005 N.Y. App. Div. LEXIS 2443

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 10, 2005
• Status: Published

Opinion

Order, Supreme Court, New York County (Richard D. Carruthers, J.), entered on or about April 30, 2003, which adjudicated defendant a level three sex offender under the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The court properly assessed 20 points for the presence of two victims and 15 points for drug and alcohol abuse. Since defendant made arguments at the hearing concerning these assessments that are different from those raised on appeal, his present arguments are unpreserved (see People v Roland, 292 AD2d 271 [2002], lv denied 98 NY2d 614 [2002]), and we decline to review them in the interest of justice. Were we to review these claims, we would reject them. The court properly considered the facts contained in the felony complaint filed by the second victim (see People v Wroten, 286 AD2d 189, 199 [2001], lv denied 97 NY2d 610 [2002]), especially since they were uncontroverted (see People v Jimenez, 178 Misc 2d 319, 329 [1998]). Furthermore, at the hearing defense counsel conceded that defendant had an alcohol and marijuana problem and was in treatment. In any event, even if the 35 points under these two categories were to be deducted, defendant would still fall well within the level three risk category, and we perceive no basis for a discretionary downward departure from this assessment (see People v Guaman, 8 AD3d 545 [2004]). Concur—Tom, J.P., Andrias, Williams, Gonzalez and Catterson, JJ.