Opinion
2017–03786
06-06-2018
PEOPLE of State of New York, respondent, v. Fransis LIMA–SANCHEZ, also known as Fransis Lima, appellant.
Laurette D. Mulry, Riverhead, N.Y. (Kirk R. Brandt of counsel), for appellant. Timothy D. Sini, District Attorney, Riverhead, N.Y. (Timothy P. Finnerty of counsel), for respondent.
Laurette D. Mulry, Riverhead, N.Y. (Kirk R. Brandt of counsel), for appellant.
Timothy D. Sini, District Attorney, Riverhead, N.Y. (Timothy P. Finnerty of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., JEFFREY A. COHEN, JOSEPH J. MALTESE, BETSY BARROS, JJ.
DECISION & ORDER
Appeal by the defendant from an order of the County Court, Suffolk County (Barbara Kahn, J.), dated February 22, 2017, 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.
We agree with the County Court's assessment of 20 points under risk factor 7, based on a finding that the victim was a stranger to the defendant. The evidence submitted by the People confirmed the absence of any family relationship between the defendant and the victim, and while the defendant lived next door to the victim and was an acquaintance of the victim's father, the victim's grand jury testimony confirms that the victim herself was a stranger to the defendant (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 12 [2006] [hereinafter Guidelines]; compare People v. Sooknanan, 119 A.D.3d 540, 988 N.Y.S.2d 267, and People v. Milton, 55 A.D.3d 1073, 866 N.Y.S.2d 795, with People v. Shephard, 101 A.D.3d 978, 956 N.Y.S.2d 152, and People v. McGraw, 24 A.D.3d 525, 808 N.Y.S.2d 276 ).
We also agree with the County Court's assessment of 10 points under risk factor 13, based on evidence of a recent Tier III disciplinary violation during the defendant's incarceration (see Guidelines at 16; People v. Williams, 100 A.D.3d 610, 611, 953 N.Y.S.2d 298 ; People v. Mabee, 69 A.D.3d 820, 893 N.Y.S.2d 585 ; People v. Ealy, 55 A.D.3d 1313, 866 N.Y.S.2d 840 ).
The defendant's contention that a downward departure from his presumptive risk level designation should have been granted was never raised before the County Court and, thus, is unpreserved for appellate review (see People v. Gillotti, 23 N.Y.3d 841, 861 n. 5, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Moran, 148 A.D.3d 1189, 50 N.Y.S.3d 502 ; People v. Williams, 122 A.D.3d 1378, 996 N.Y.S.2d 455 ). In any event, the contention is without merit.
CHAMBERS, J.P., COHEN, MALTESE and BARROS, JJ., concur.