PEOPLE v. CALLAGHAN (2008)

Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Steven CALLAGHAN, Defendant-Appellant.

Decided: November 20, 2008

TOM, J.P., SAXE, SWEENY, CATTERSON, DeGRASSE, JJ.

Steven Banks, The Legal Aid Society, New York (Susan Epstein of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Jessica Macari of counsel), for respondent.

Order, Supreme Court, New York County (Ruth L. Sussman, J.), entered on or about March 1, 2005, which adjudicated defendant a level three sex offender pursuant to the Sex Offender Registration Act (Correction Law art. 6-C), unanimously affirmed, without costs.

The court properly exercised its discretion in denying defendant a downward departure from his presumptive risk level (see People v. Guaman, 8 A.D.3d 545, 778 N.Y.S.2d 704 [2004] ). Defendant's conduct following his release from custody did not warrant such a departure, given the seriousness of the underlying crime and defendant's overall criminal record.

Defendant's challenges to his total presumptive risk factor score are unpreserved and, in any event, unavailing, since it is undisputed that even with the reductions he seeks, he would still qualify as a level three offender.

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