Majority
— Appeal by the defendant from an order of the Supreme Court, Kings County (Bren
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 [2009]; People v McFall, 93 AD3d 962 , 963 [2012]).
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 [2011]) and, in any event, without merit (see People v Francis, 137 AD3d 91 [2d Dept 2016]; People v Torres, 103 AD3d 868 [2013]; cf. People v Campbell, 98 AD3d 5 [2012]).
The Supreme Court properly determined that the defendant was not entitled to a downward departure (see People v Belile, 108 AD3d 890 , 891 [2013]; People v Fryer, 101 AD3d 835 , 836 [2012]; People v Wyatt, 89 AD3d 112 [2011]).
The defendant’s remaining contention is without merit.
Leventhal, J.P., Chambers, Hall and Duffy, JJ., concur.
Cases cited
- People v. Mingo 12 NY3d 563 at 571 p. 670
- People v. McFall 93 AD3d 962 at 963 p. 670
- People v. Duart 84 AD3d 908 at 908-909 p. 670
- People v. Francis 137 AD3d 91 p. 670
- People v. Campbell 98 AD3d 5 p. 670
- People v. Belile 108 AD3d 890 at 891 p. 670
- People v. Fryer 101 AD3d 835 at 836 p. 670
- People v. Wyatt 89 AD3d 112 p. 670