PEOPLE v. AUSTIN (2019)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:  Defendant appeals from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.).  Defendant failed to preserve for our review his contention that he was entitled to a downward departure to a level one risk (see People v. Nilsen, 148 A.D.3d 1688, 1689, 50 N.Y.S.3d 199 [4th Dept. 2017], lv. denied 29 N.Y.3d 912, 2017 WL 2468575 [2017];  People v. Brockington, 94 A.D.3d 1433, 1434, 942 N.Y.S.2d 823 [4th Dept. 2012], lv denied 19 N.Y.3d 809, 2012 WL 3741878 [2012] ).  In any event, we conclude that “defendant failed to establish his entitlement to a downward departure from his presumptive risk level inasmuch as he failed to establish the existence of a mitigating factor by the requisite preponderance of the evidence” (People v. Phillips, 162 A.D.3d 1752, 1753, 76 N.Y.S.3d 452 [4th Dept. 2018], lv denied 32 N.Y.3d 908, 2018 WL 5259924 [2018] [internal quotation marks omitted];  see People v. Puff, 151 A.D.3d 1965, 1966, 57 N.Y.S.3d 864 [4th Dept. 2017], lv denied 30 N.Y.3d 904, 2017 WL 4782708 [2017];  Nilsen, 148 A.D.3d at 1689, 50 N.Y.S.3d 199).

Defendant also failed to preserve for our review his contention that County Court erred in assessing 10 points under risk factor 8 (see People v. Kyle, 64 A.D.3d 1177, 1178, 881 N.Y.S.2d 759 [4th Dept. 2009], lv. denied 13 N.Y.3d 709, 2009 WL 3379124 [2009] ).  In any event, that contention lacks merit.  Correction Law § 168–a provides that kidnapping offenses committed against minors are registerable sex offenses, and the Court of Appeals has held that provision constitutional (see § 168–a [1], [2][a][i];  People v. Knox, 12 N.Y.3d 60, 68–69, 875 N.Y.S.2d 828, 903 N.E.2d 1149 [2009], cert denied 558 U.S. 1011, 130 S.Ct. 552, 175 L.Ed.2d 382 [2009] ).  Contrary to defendant's contention, risk factor 8 takes into account a defendant's “age at the time of commission” of the relevant sex offense (Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 13 [2006];  see People v. Pietarniello, 53 A.D.3d 475, 476–477, 862 N.Y.S.2d 69 [2d Dept. 2008], lv denied 11 N.Y.3d 707, 868 N.Y.S.2d 599, 897 N.E.2d 1083 [2008] ).