People v. Torres

136 A.D.3d 669, 23 N.Y.S.3d 898

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 3, 2016
• Docket: 2012-05958
• Status: Published

Opinion

— Appeal by the defendant from an order of the Supreme Court, Kings County (Bren nan, J.), dated June 18, 2012, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.

Ordered that the order is affirmed, without costs or disbursements.

Contrary to the defendant’s contention, the People adduced clear and convincing evidence supporting the assessment of 15 points under risk factor 12 based on his failure to attend mandated psychosexual treatment, which resulted in the defendant violating his probation and being returned to jail (see People v Mingo, 12 NY3d 563, 571 [2009]; People v McFall, 93 AD3d 962, 963 [2012]).

The defendant’s contention that the Supreme Court should not have considered a youthful offender adjudication in assessing him 30 points under risk factor 9 is unpreserved for appellate review (see People v Duart, 84 AD3d 908, 908-909 [2011]) and, in any event, without merit (see People v Francis, 137 AD3d 91 [2d Dept 2016]; People v Torres, 103 AD3d 868 [2013]; cf. People v Campbell, 98 AD3d 5 [2012]).

The Supreme Court properly determined that the defendant was not entitled to a downward departure (see People v Belile, 108 AD3d 890, 891 [2013]; People v Fryer, 101 AD3d 835, 836 [2012]; People v Wyatt, 89 AD3d 112 [2011]).

The defendant’s remaining contention is without merit.

Leventhal, J.P., Chambers, Hall and Duffy, JJ., concur.