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People v. Noeker

156 A.D.3d 733 Court N.Y. App. Div. Decision date 2017-12-13 English

Judges Dillon, J.P., Cohen, Connolly and Christopher, JJ., concur.

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p. 733
The People of the State of New York, Respondent, v Richard Noeker, Appellant.
[64 NYS3d 893]

Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), dated August 10, 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.

p. 734
The defendant challenges his designation as a level two sex offender pursuant to the Sex Offender Registration Act (see Correction Law art 6-C [hereinafter SORA]) following his conviction upon a plea of guilty to 8 counts of promoting a sexual performance by a child in violation of Penal Law § 263.15 and 21 counts of possessing a sexual performance by a child in violation of Penal Law § 263.16.

The defendant’s contention that the County Court improperly assessed 30 points under risk factor 3 (number of victims) is unpreserved for appellate review, since he did not raise this issue at the SORA hearing (see People v Destio, 145 AD3d 1047 , 1048 [2016]). In any event, this contention is without merit (see People v Gillotti, 23 NY3d 841 , 845 [2014]; People v Nethercott, 119 AD3d 918 [2014]; People v Brown, 116 AD3d 1017 [2014]). Further, contrary to the defendant’s contention, the court properly assessed 20 points under risk factor 7 (relationship with victim) (see People v Gillotti, 23 NY3d at 854 ; People v Johnson, 11 NY3d 416 , 418-420 [2008]; People v Nethercott, 119 AD3d 918 [2014]; People v Brown, 116 AD3d 1017 [2014]).

The defendant’s contention that he was entitled to a downward departure is unpreserved for appellate review because he did not request a downward departure from his presumptive designation as a level two sex offender during the SORA hearing (see People v Sweat, 147 AD3d 802 , 802 [2017]). In any event, this contention is without merit (see id.).

Dillon, J.P., Cohen, Connolly and Christopher, JJ., concur.

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