Opinion
2015-04-22
PEOPLE of State of New York, respondent, v. Jose DeJESUS, appellant.
Seymour W. James, Jr., New York, N.Y. (Kerry Elgarten of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and John F. McGoldrick of counsel), for respondent.
Seymour W. James, Jr., New York, N.Y. (Kerry Elgarten of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and John F. McGoldrick of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Queens County (Koenderman, J.), dated June 25, 2012, 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.
Contrary to the defendant's contention, in determining his risk level under the Sex Offender Registration Act (Correction Law art. 6–C), the Supreme Court properly assessed 20 points against him under risk factor 4 for engaging in a continuing course of sexual misconduct against the victim. Here, the sworn felony complaint constituted “reliable hearsay” (People v. Mingo, 12 N.Y.3d 563, 576, 883 N.Y.S.2d 154, 910 N.E.2d 983; see People v. Patronick, 117 A.D.3d 1018, 1019, 986 N.Y.S.2d 593; People v. Townsend, 60 A.D.3d 655, 656, 874 N.Y.S.2d 538) and provided clear and convincing evidence to warrant the assessment of the challenged points ( see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 10 [2006]; People v. Patronick, 117 A.D.3d 1018, 1019, 986 N.Y.S.2d 593).
The defendant failed to preserve his contention that a downward departure from the presumptive risk level was warranted ( see People v. Estrella, 90 A.D.3d 879, 934 N.Y.S.2d 718; People v. Spring, 83 A.D.3d 1028, 921 N.Y.S.2d 539; People v. Iorio, 74 A.D.3d 1306, 1307, 903 N.Y.S.2d 270). In any event, under the circumstances of this case, the defendant's age did not warrant a downward departure from his presumptive risk level ( see People v. Lucius, 122 A.D.3d 819, 820, 996 N.Y.S.2d 659; People v. Grubbs, 107 A.D.3d 771, 773, 967 N.Y.S.2d 112; People v. Harris, 93 A.D.3d 704, 706, 940 N.Y.S.2d 127), and the remaining factors upon which he relied were already taken into account by the Guidelines ( see People v. Torres, 124 A.D.3d 744, 998 N.Y.S.2d 464; see generally People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1).
Accordingly, the defendant was properly designated a level two sex offender.