Opinion
361 KA 17–00750
04-26-2019
The PEOPLE of the State of New York, Respondent, v. Derrell AUSTIN, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ERIN A. KULESUS OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. PUNCH OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ERIN A. KULESUS OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. PUNCH OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs. Memorandum: Defendant appeals from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act ( Correction Law § 168 et seq. ). Defendant failed to preserve for our review his contention that he was entitled to a downward departure to a level one risk (see People v. Nilsen, 148 A.D.3d 1688, 1689, 50 N.Y.S.3d 199 [4th Dept. 2017], lv. denied 29 N.Y.3d 912, 2017 WL 2468575 [2017] ; People v. Brockington, 94 A.D.3d 1433, 1434, 942 N.Y.S.2d 823 [4th Dept. 2012], lv denied 19 N.Y.3d 809, 2012 WL 3741878 [2012] ). In any event, we conclude that "defendant failed to establish his entitlement to a downward departure from his presumptive risk level inasmuch as he failed to establish the existence of a mitigating factor by the requisite preponderance of the evidence" ( People v. Phillips, 162 A.D.3d 1752, 1753, 76 N.Y.S.3d 452 [4th Dept. 2018], lv denied 32 N.Y.3d 908, 2018 WL 5259924 [2018] [internal quotation marks omitted]; see People v. Puff, 151 A.D.3d 1965, 1966, 57 N.Y.S.3d 864 [4th Dept. 2017], lv denied 30 N.Y.3d 904, 2017 WL 4782708 [2017] ; Nilsen, 148 A.D.3d at 1689, 50 N.Y.S.3d 199 ).
Defendant also failed to preserve for our review his contention that County Court erred in assessing 10 points under risk factor 8 (see People v. Kyle, 64 A.D.3d 1177, 1178, 881 N.Y.S.2d 759 [4th Dept. 2009], lv. denied 13 N.Y.3d 709, 2009 WL 3379124 [2009] ). In any event, that contention lacks merit. Correction Law § 168–a provides that kidnapping offenses committed against minors are registerable sex offenses, and the Court of Appeals has held that provision constitutional (see § 168–a [1 ], [2][a][i]; People v. Knox, 12 N.Y.3d 60, 68–69, 875 N.Y.S.2d 828, 903 N.E.2d 1149 [2009], cert denied 558 U.S. 1011, 130 S.Ct. 552, 175 L.Ed.2d 382 [2009] ). Contrary to defendant's contention, risk factor 8 takes into account a defendant's "age at the time of commission" of the relevant sex offense (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 13 [2006]; see People v. Pietarniello, 53 A.D.3d 475, 476–477, 862 N.Y.S.2d 69 [2d Dept. 2008], lv denied 11 N.Y.3d 707, 868 N.Y.S.2d 599, 897 N.E.2d 1083 [2008] ).