Opinion
473 KA 19-00977
08-20-2020
The PEOPLE of the State of New York, Respondent, v. Gerald J. ORTIZ, Defendant-appellant.
ANDREW D. CORREIA, PUBLIC DEFENDER, LYONS (BRIDGET L. FIELD OF COUNSEL), FOR DEFENDANT-APPELLANT. MICHAEL D. CALARCO, DISTRICT ATTORNEY, LYONS (BRUCE A. ROSEKRANS OF COUNSEL), FOR RESPONDENT.
ANDREW D. CORREIA, PUBLIC DEFENDER, LYONS (BRIDGET L. FIELD OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL D. CALARCO, DISTRICT ATTORNEY, LYONS (BRUCE A. ROSEKRANS OF COUNSEL), FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, CURRAN, TROUTMAN, AND BANNISTER, 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 ( [SORA] Correction Law § 168 et seq . ). Contrary to defendant's contention, County Court's determination that the victim was "10 or less" years of age at the time the abuse began is supported by the requisite clear and convincing evidence (see § 168-n [3]; People v. Carbone , 89 A.D.3d 1392, 1392, 933 N.Y.S.2d 464 [4th Dept. 2011], lv denied 18 N.Y.3d 806, 2012 WL 445872 [2012] ). That evidence was contained in the police reports, which provided that the victim reported to the police officers that the abuse began when she lived on one particular street. Although there is no evidence concerning when the victim and her family moved to a different address, defendant pleaded guilty to count three of the indictment, which alleged that the victim was living at a second address on the date of her 11th birthday. As a result, the court correctly determined that any "abuse beginning at [the first address] would necessarily have occurred when the victim was age 10 or less."
As defendant correctly concedes, he failed to preserve for our review his contention that he is entitled to a downward departure (see People v. Austin , 171 A.D.3d 1494, 1495, 97 N.Y.S.3d 375 [4th Dept. 2019], lv denied 33 N.Y.3d 910, 2019 WL 2622426 [2019] ; People v. Havens , 144 A.D.3d 1632, 1632, 42 N.Y.S.3d 708 [4th Dept. 2016], lv denied 29 N.Y.3d 901, 2017 WL 1093982 [2017] ). In any event, that contention lacks merit inasmuch as defendant failed "to allege mitigating circumstances that are, as a matter of law, of a kind or to a degree not adequately taken into account by the Risk Assessment Guidelines and Commentary" ( People v. Voymas , 122 A.D.3d 1336, 1337, 995 N.Y.S.2d 438 [4th Dept. 2014], lv denied 25 N.Y.3d 913, 2015 WL 3971379 [2015] ; see 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] ).