PEOPLE v. LESLIE (2024)

Order, Supreme Court, Bronx County (Efrain Alvarado, J.), entered on or about July 7, 2016, which adjudicated defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.

During his SORA hearing, defendant requested that his registration as a sex offender in New York be ordered to commence nunc pro tunc to the date of his sex offender registration in Florida.  The court, however, did not address defendant's request in its written decision, and defendant did not alert the court that his application remained unresolved.  Accordingly, defendant's claim is unpreserved and abandoned (see People v. Williams, 215 A.D.3d 431, 185 N.Y.S.3d 663 [1st Dept. 2023];  People v. Holmes, 202 A.D.3d 519, 520, 162 N.Y.S.3d 56 [1st Dept. 2022], lv denied 38 N.Y.3d 1008, 168 N.Y.S.3d 359, 188 N.E.3d 551 [2022]), and we decline to review it in the interest of justice.  As an alternative holding, we reject it on the merits (see People v. Corr, ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2024 N.Y. Slip Op. 03379 [2024]).  Defendant's further contentions that the court's failure to grant his request violated the Equal Protection Clause and the Full Faith and Credit Clause are likewise unpreserved and, in any event, unavailing (see People v. Hoyos–Sanchez, 147 A.D.3d 701, 702, 48 N.Y.S.3d 138 [1st Dept. 2017], lv denied 29 N.Y.3d 912, 2017 WL 2467922 [2017];  People v. McGarghan, 83 A.D.3d 422, 423, 920 N.Y.S.2d 329 [1st Dept. 2011]).

The court providently exercised its discretion in declining to grant a downward departure (see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]).  Defendant's acceptance of responsibility had been adequately accounted for by the risk assessment instrument, which scored defendant zero points under this factor.  Defendant contends that the risk assessment instrument overassessed his risk because the victim's inability to consent was solely due to her age, and because there was only a five-year age difference between him and the victim at the time of the offense.  We find that there was no overassessment, given the nature of the underlying crime, in which defendant knowingly engaged in a sexual relationship with the underage victim and impregnated her, while lying about his age to the victim and telling her to lie about hers (see People v. Silva, 212 A.D.3d 483, 179 N.Y.S.3d 906 [1st Dept. 2023];  People v. Cathy, 134 A.D.3d 1579, 1580, 22 N.Y.S.3d 747 [4th Dept. 2015]).  Further, the underlying offense, along with defendant's prior crimes, which included repeated sexual intercourse with a 13–year–old girl, indicated a significant risk of recidivism, which was not outweighed by any mitigating factors (see People v. Rosario, 216 A.D.3d 601, 190 N.Y.S.3d 324 [1st Dept. 2023]).