People v. Ross

121 A.D.3d 440, 993 N.Y.S.2d 36

Opinion

Order, Supreme Court, New York County (Michael J. Obús, J.), entered on or about January 3, 2013, 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 court granted defendant’s request for a downward departure to level two. On appeal, defendant argues, for the first time, that he should receive a further downward departure in light of his current age of 49, citing social science research indicating a negative correlation between sexual offender recidivism and age. As defendant acknowledges, that claim is unpreserved, and we decline to review it in the interest of justice. As an alternative holding, we find that defendant’s age does not warrant a downward departure, especially in light of his prior history of sexual misconduct and the seriousness of the underlying offense, involving a criminal sexual act with a child (see e.g. People v Cruz, 100 AD3d 574 [1st Dept 2012]; People v Harrison, 74 AD3d 688 [1st Dept 2010], lv denied 15 NY3d 711 [2010]).

Concur — Sweeny, J.E, Renwick, Andrias, Moskowitz and Manzanet-Daniels, JJ.