People v. Moran

Appeal by the defendant from an order of the Supreme Court, Queens County (Margulis, J.), dated September 14, 2016, 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 of possession of child pornography in violation of 18 USC § 2252A (a) (4) (B) and was sentenced to a term of imprisonment plus supervised release. Prior to his release from prison, the Supreme Court conducted a hearing pursuant to the Sex Offender Registration Act (see Correction Law art 6-C; hereinafter SORA) to determine the defendant’s risk level designation. The court assessed a total of 80 points against the defendant under risk factors 3 (number of victims — three or more), 5 (age of victim — 10 or less), and 7 (relationship with victim — stranger) of the risk assessment instrument and designated him a level two sex offender. The defendant appeals.

At the SORA hearing, the defendant challenged the assessment of points under risk factors 3 and 7. However, the defendant never argued before the Supreme Court that, even if points were assessed under risk factors 3 and 7, he was entitled to a downward departure, and the defendant never presented any mitigating factors to the court. Thus, his contention on appeal that the court should have exercised its discretion by granting him a downward departure is unpreserved for appellate review (see People v Gillotti, 23 NY3d 841 , 861 n 5 [2014]; People v Johnson, 11 NY3d 416 , 421-422 [2008]; People v Broadus, 142 AD3d 595 , 596 [2016]). In any event, the defendant’s contention is without merit (see People v Rossano, 140 AD3d 1042 , 1043 [2016]).

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

Hall, J.P., Austin, Sgroi and Connolly, JJ., concur.