People v. Valencia

206 N.Y.S.3d 181

PEOPLE of State of New York, respondent,

v.Jonathan VALENCIA, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Submitted—February 1, 2024

March 6, 2024

James D. Licata, New City, NY (Lois Cappelletti of counsel), for appellant.

Thomas E. Walsh II, District Attorney, New City, NY (Morgan Czarnik of counsel), for respondent.

VALERIE BRATHWAITE NELSON, J.P., PAUL WOOTEN, WILLIAM G. FORD, JANICE A. TAYLOR, JJ.

DECISION & ORDER

Appeal by the defendant from an order of the County Court, Rockland County (Larry J. Schwartz, J.), dated May 15, 2023, 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.

The defendant was convicted, upon his plea of guilty, of rape in the third degree. After a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6–C), the County Court assessed the defendant 85 points on the risk assessment instrument and designated him a level two sex offender.

Since the defendant did not request a downward departure from his presumptive risk level in the County Court, his contention on appeal regarding a downward departure is unpreserved for appellate review (see People v. Jackson, 209 A.D.3d 881, 882, 176 N.Y.S.3d 328; People v. Rodriguez, 194 A.D.3d 864, 143 N.Y.S.3d 607; People v. Gounaris, 192 A.D.3d 834, 835, 139 N.Y.S.3d 867). In any event, the defendant failed to establish that a downward departure was warranted (see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701; People v. Wyatt, 89 A.D.3d 112, 128, 931 N.Y.S.2d 85).

Accordingly, the County Court properly designated the defendant a level two sex offender.

BRATHWAITE NELSON, J.P., WOOTEN, FORD and TAYLOR, JJ., concur.