Jeffrey D. Cohen, Kew Gardens, N.Y., for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Jeanette Lifschitz of counsel; Lorrie A. Zinno on the brief), for respondent.
Opinion
Appeal by the defendant from an order of the Supreme Court, Queens County (Margulis, J.), dated April 8, 2015, 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, the Supreme Court properly assessed 30 points under risk factor 3 (number of victims) and 20 points under risk factor 7 (relationship with victim) based upon his conviction, in Florida, of possession of a sexual performance by a child (see People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701; People v. Johnson, 11 N.Y.3d 416, 872 N.Y.S.2d 379, 900 N.E.2d 930; People v. Nethercott, 119 A.D.3d 918, 989 N.Y.S.2d 900).
The Supreme Court's determination to designate the defendant a level two sex offender was based upon its assessment of a total of 80 points under the risk assessment instrument (see Correction Law § 168–k2 ). The court did not upwardly depart to a risk level two. Thus, the defendant's contention that the court erroneously granted an upward departure is without merit.
The defendant's remaining contention, that there was a “compelling basis” for a downward departure, is unpreserved for appellate review (see People v. Johnson, 11 N.Y.3d at 421, 872 N.Y.S.2d 379, 900 N.E.2d 930; People v. Estrella, 90 A.D.3d 879, 934 N.Y.S.2d 718).
Accordingly, the Supreme Court properly designated the defendant a level two sex offender.
RIVERA, J.P., LEVENTHAL, SGROI and HINDS–RADIX, JJ., concur.