Opinion
1100 KA 14-00259
11-21-2014
The PEOPLE of the State of New York, Respondent, v. Eugene A. WILLIAMS, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert B. Hallborg, Jr., of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Small of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert B. Hallborg, Jr., of Counsel), for Defendant–Appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Small of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., FAHEY, CARNI, LINDLEY, and VALENTINO, JJ.
Opinion
MEMORANDUM: On appeal from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act ( [SORA] Correction Law § 168 et seq. ), defendant contends that the determination should be modified downward in the interest of justice so as to make him a level one risk. In support of that contention, defendant notes that County Court assessed 30 points against him under risk factor 9 (number and nature of prior crimes) based on an attempted robbery offense for which he was adjudicated a youthful offender. Without those 30 points, defendant would have been a presumptive level one risk. To the extent that defendant contends that the SORA court should have granted him a downward departure, that contention is unpreserved for our review “because defendant never asked the SORA court to order a downward departure” (People v. Gillotti, 23 N.Y.3d 841, 861 n. 5, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; see People v. Johnson, 11 N.Y.3d 416, 421–422, 872 N.Y.S.2d 379, 900 N.E.2d 930 ; People v. Quinones, 91 A.D.3d 1302, 1303, 937 N.Y.S.2d 780, lv. denied 19 N.Y.3d 802, 2012 WL 1538352 ). In any event, as defendant correctly acknowledges, it is well settled that “youthful offender adjudications are to be treated as ‘crimes' for purposes of assessing the defendant's likelihood of re-offending and danger to public safety” (People v. Moore, 1 A.D.3d 421, 421, 766 N.Y.S.2d 700, lv. denied 2 N.Y.3d 743, 778 N.Y.S.2d 469, 810 N.E.2d 922 ; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 6, 13 [2006]; People v. Wilkins, 77 A.D.3d 588, 588, 909 N.Y.S.2d 362, lv. denied 16 N.Y.3d 703, 2011 WL 135731 ; People v.
Irving, 45 A.D.3d 1389, 1389–1390, 846 N.Y.S.2d 487, lv. denied 10 N.Y.3d 703, 854 N.Y.S.2d 103, 883 N.E.2d 1010 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.