People v. Rodriguez

2017 NY Slip Op 8025, 155 A.D.3d 899, 63 N.Y.S.3d 712

Opinion

Appeal by the defendant from an order of the Supreme Court, Suffolk County (Kahn, J.), dated January 6, 2017, 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.

The defendant pleaded guilty to two counts of possessing a sexual performance by a child less than 16 years of age. After a hearing pursuant to the Sex Offender Registration Act (see Correction Law art 6-C), the Supreme Court determined that the defendant was a presumptive level two sex offender based on his total score on the risk assessment instrument, and designated him a level two sex offender. On appeal, the defendant contends that the court erred in assessing 20 points under risk factor 7 (relationship with victim), and that the court should have downwardly departed from the presumptive risk level and designated him a level one sex offender.

Contrary to the defendant’s contention, he was properly assessed 20 points under risk factor 7 based upon his conviction of possessing a sexual performance by a child less than 16 years of age in violation of Penal Law § 263.16 (see People v Gillotti, 23 NY3d 841 [2014]; People v Johnson, 11 NY3d 416 [2008]; People v Vansteen, 140 AD3d 721 [2016]; People v Morel-Baca, 127 AD3d 833 [2015]).

The defendant never argued before the Supreme Court that he was entitled to a downward departure, and did not present any mitigating factors to the court. Therefore, his contention on appeal that the court should have granted him a downward departure is unpreserved for appellate review (see People v Moran, 148 AD3d 1189 [2017]; People v Broadus, 142 AD3d 595, 596 [2016]). In any event, the defendant’s contention is without merit (see People v Gillotti, 23 NY3d at 861).

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

Eng, P.J., Roman, Miller and Christopher, JJ., concur.