Majority
p. 553The People of the State of New York, Respondent, v Jermaine Alston, Appellant. [926 NYS2d 901]
p. 554
“A departure from the presumptive risk level is warranted where ‘there exists an aggravating or mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines’ ” (People v Bussie, 83 AD3d 920 , 920-921 [2011], Iv denied 17 NY3d 704 [2011], quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [2006]; see People v Cruz, 74 AD3d 1305 , 1306 [2010]). Here, the Supreme Court properly determined that the defendant was not entitled to a downward departure and, thus, properly designated the defendant a level three sex offender (see People v Sivells, 83 AD3d 1027 [2011]; People v Bussie, 83 AD3d 920 [2011]).
The defendant’s remaining contentions are improperly raised for the first time on appeal. Rivera, J.E, Florio, Austin and Cohen, JJ., concur.
Cases cited
- People v. Bussie 83 AD3d 920 at 920-921 p. 554
- People v. Cruz 74 AD3d 1305 at 1306 p. 554
- People v. Sivells 83 AD3d 1027 p. 554