

People v DeJesus (2015 NY Slip Op 03337)





People v DeJesus


2015 NY Slip Op 03337


Decided on April 22, 2015


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on April 22, 2015
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

PETER B. SKELOS, J.P.
MARK C. DILLON
LEONARD B. AUSTIN
SYLVIA O. HINDS-RADIX, JJ.


2012-06733

[*1]People of State of New York, respondent,
vJose 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.

DECISION & ORDER
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 NY3d 563, 576; see People v Patronick, 117 AD3d 1018, 1019; People v Townsend, 60 AD3d 655, 656) 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 AD3d 1018, 1019).
The defendant failed to preserve his contention that a downward departure from the presumptive risk level was warranted (see People v Estrella, 90 AD3d 879; People v Spring, 83 AD3d 1028; People v Iorio, 74 AD3d 1306, 1307). 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 AD3d 819, 820; People v Grubbs, 107 AD3d 771, 773; People v Harris, 93 AD3d 704, 706), and the remaining factors upon which he relied were already taken into account by the Guidelines (see People v Torres, 124 AD3d 744; see generally People v Gillotti, 23 NY3d 841, 861).
Accordingly, the defendant was properly designated a level two sex offender.
SKELOS, J.P., DILLON, AUSTIN and HINDS-RADIX, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


