Opinion
2019–05505
09-30-2020
PEOPLE of State of New York, respondent, v. Tyler SICK, appellant.
Clare J. Degnan, White Plains, NY (Salvatore A. Gaetani of counsel; Jalen Matney on the brief), for appellant. Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Raffaelina Gianfrancesco and William C. Milaccio of counsel), for respondent.
Clare J. Degnan, White Plains, NY (Salvatore A. Gaetani of counsel; Jalen Matney on the brief), for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Raffaelina Gianfrancesco and William C. Milaccio of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., SYLVIA O. HINDS-RADIX, HECTOR D. LASALLE, PAUL WOOTEN, JJ.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Westchester County (Susan Cacace, J.), entered December 6, 2018, 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.
The defendant was convicted, upon his pleas of guilty, of two counts of rape in the third degree. After a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6–C), the Supreme Court granted the People's application for an upward departure from the presumptive risk level, denied the defendant's application for a downward departure from the presumptive risk level, and designated the defendant a level three sex offender. The defendant appeals.
Contrary to the defendant's contention, the People established by clear and convincing evidence that the crimes arose in the context of a professional relationship between the defendant and the victim. The People met their burden as to the assessment of 20 points under risk factor 7 through evidence that the defendant was employed as a substitute teacher and a wrestling coach at the high school that the victim attended and that the victim was an assistant manager for the wrestling team (see People v. Moore–Johnson, 178 A.D.3d 1102, 1103, 112 N.Y.S.3d 588 ; People v. Somodi, 170 A.D.3d 1056, 1057–1058, 94 N.Y.S.3d 586 ; People v. Stanley, 165 A.D.3d 1185, 1185–1186, 86 N.Y.S.3d 134 ; People v. Singh, 165 A.D.3d 444, 444, 84 N.Y.S.3d 149 ; People v. Blackwood, 129 A.D.3d 528, 528–529, 11 N.Y.S.3d 157 ; People v. Riverso, 96 A.D.3d 1533, 1533–1534, 947 N.Y.S.2d 250 ; People v. Briggs, 86 A.D.3d 903, 903–904, 928 N.Y.S.2d 108 ; People v. Farrell, 78 A.D.3d 1454, 1454, 912 N.Y.S.2d 140 ; People v. Carlton, 78 A.D.3d 1654, 1656, 911 N.Y.S.2d 752 ; People v. Cuesta, 65 A.D.3d 1113, 1114, 886 N.Y.S.2d 413 ). The defendant's remaining contention regarding this risk factor is unpreserved for appellate review since he failed to raise that ground before the Supreme Court. Given the age disparity between the then 28–year–old defendant and the then 15–year–old victim, we agree with the Supreme Court's denial of the defendant's application for a downward departure (see People v. Catalano, 178 A.D.3d 1460, 1461, 112 N.Y.S.3d 638 ; People v. Love, 175 A.D.3d 1835, 1835, 109 N.Y.S.3d 811 ; People v. Dadd, 170 A.D.3d 898, 899, 93 N.Y.S.3d 869 ; People v. Garner, 163 A.D.3d 1009, 1009–1010, 81 N.Y.S.3d 572 ; People v. Quirindongo, 153 A.D.3d 863, 863–864, 57 N.Y.S.3d 902 ; People v. Anderson, 137 A.D.3d 988, 988, 27 N.Y.S.3d 616 ; People v. Fryer, 101 A.D.3d 835, 835, 955 N.Y.S.2d 407 ).
The Supreme Court providently exercised its discretion in granting the People's application for an upward departure from the presumptive risk level to risk level three (see People v. Bernstein, 156 A.D.3d 448, 65 N.Y.S.3d 497 ).
CHAMBERS, J.P., HINDS–RADIX, LASALLE and WOOTEN, JJ., concur.