Opinion
2015-04-08
PEOPLE of State of New York, respondent, v. Steven WISE, appellant.
Kent V. Moston, Hempstead, N.Y. (Jeremy L. Goldberg and David Bernstein of counsel), for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Laurie K. Gibbons and Rebecca L. Abensur of counsel), for respondent.
Kent V. Moston, Hempstead, N.Y. (Jeremy L. Goldberg and David Bernstein of counsel), for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Laurie K. Gibbons and Rebecca L. Abensur of counsel), for respondent.
WILLIAM F. MASTRO, J.P., MARK C. DILLON, L. PRISCILLA HALL, and ROBERT J. MILLER, JJ.
Appeal by the defendant from an order of the County Court, Nassau County (O'Brien, J.), entered December 19, 2012, 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.
Contrary to the defendant's contention, the assessment of 20 points against him under risk factor 7 for his establishment of a relationship with an undercover police officer posing as a 13–year–old girl for the purpose of victimizing the fictitious child was supported by clear and convincing evidence ( see People v. Hemmes, 110 A.D.3d 1387, 1388, 973 N.Y.S.2d 875; People v. DeDona, 102 A.D.3d 58, 64, 954 N.Y.S.2d 541). Further, the assessment of 15 points pursuant to risk factor 11 based upon the defendant's lengthy and intense history of substance abuse also was supported by clear and convincing evidence ( see People v. Zavala, 114 A.D.3d 653, 654, 979 N.Y.S.2d 660; People v. Finizio, 100 A.D.3d 977, 978, 954 N.Y.S.2d 636; People v. Crandall, 90 A.D.3d 628, 629, 934 N.Y.S.2d 446).
A risk assessment instrument generally results in a presumptive risk level determination (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [2006] ) (hereinafter Guidelines), and a court may downwardly depart from the presumptive risk level where “there exists ... [a] mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines” (Guidelines at 4; see People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701; People v. Wyatt, 89 A.D.3d 112, 931 N.Y.S.2d 85). Here, the County Court properly concluded that the defendant failed to identify an appropriate mitigating factor that warranted a downward departure and, therefore, properly denied his request for that relief ( see People v. Wortham, 119 A.D.3d 666, 989 N.Y.S.2d 618).
The defendant's contention that the prosecution's failure to turn over a federal presentence investigation report to him prior to the hearing deprived him of due process and violated Correction Law § 168–n(3) is unpreserved for appellate review, since he never advanced that argument at the hearing ( see People v. Charache, 9 N.Y.3d 829, 830, 841 N.Y.S.2d 223, 873 N.E.2d 267; People v. Kotler, 123 A.D.3d 992, 993, 999 N.Y.S.2d 171; People v. Williamson, 73 A.D.3d 1398, 901 N.Y.S.2d 761; People v. Cureton, 299 A.D.2d 532, 750 N.Y.S.2d 506). In any event, the contention is without merit, as the defendant received the report at the outset of the hearing, was afforded ample time to review it, and made effective use of it during the proceeding.