

People v Torres (2016 NY Slip Op 00683)





People v Torres


2016 NY Slip Op 00683


Decided on February 3, 2016


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 February 3, 2016
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

JOHN M. LEVENTHAL, J.P.
CHERYL E. CHAMBERS
L. PRISCILLA HALL
COLLEEN D. DUFFY, JJ.


2012-05958

[*1]People of State of New York, respondent,
vJulio Torres, appellant.


Lynn W. L. Fahey, New York, NY (Kathleen Whooley of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove, Anthea H. Bruffee, and Daniel Berman of counsel), for respondent.

DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Kings County (Brennan, J.), dated June 18, 2012, 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.
Contrary to the defendant's contention, the People adduced clear and convincing evidence supporting the assessment of 15 points under risk factor 12 based on his failure to attend mandated psychosexual treatment, which resulted in the defendant violating his probation and being returned to jail (see People v Mingo, 12 NY3d 563, 571; People v McFall, 93 AD3d 962, 963).
The defendant's contention that the Supreme Court should not have considered a youthful offender adjudication in assessing him 30 points under risk factor 9 is unpreserved for appellate review (see People v Duart, 84 AD3d 908, 908-909) and, in any event, without merit (see People v Francis _____ AD3d _____, 2016 NY Slip Op 00488 [2d Dept 2016]; People v Torres, 103 AD3d 868; cf. People v Campbell, 98 AD3d 5).  
The Supreme Court properly determined that the defendant was not entitled to a downward departure (see People v Belile, 108 AD3d 890, 891; People v Fryer, 101 AD3d 835, 836; People v Wyatt, 89 AD3d 112).
The defendant's remaining contention is without merit.
LEVENTHAL, J.P., CHAMBERS, HALL and DUFFY, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


