THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. RODRIGO DOMINGO NOLASCO DEFENDANT APPELLANT (2026)

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.). The risk assessment instrument prepared by the Board of Examiners of Sex Offenders assessed 55 points against defendant under risk factors 1, 2, and 5, making him a presumptive level one risk. At the People's request, County Court assessed additional points under risk factor 7, for conduct directed at a stranger, and risk factor 14, for release without supervision, making defendant a presumptive level two risk. Inasmuch as defendant was to be deported to his home country of Guatemala upon his release, he correctly conceded during the hearing that additional points should have been assessed under risk factor 14. Thus, the sole issue on appeal is whether the victim was a stranger to defendant for purposes of determining whether defendant should have been assessed 20 points under risk factor 7. We affirm.

Preliminarily, we reject the People's assertion that defendant's deportation rendered this appeal moot (see People v Del Rosario, 36 NY3d 964, 965 [2020]; People v Rodriguez, 196 AD3d 43, 47 [2d Dept 2021], lv denied 37 NY3d 913 [2021]; People v Scott, 113 AD3d 491, 492 [1st Dept 2014], lv denied 23 NY3d 903 [2014]).

Contrary to defendant's contention, the court did not err in assessing 20 points against him under risk factor 7 inasmuch as the People provided clear and convincing evidence that defendant and the victim were strangers. The People properly relied on the victim's grand jury testimony that she did not know defendant, she met him only six days before the criminal act, she had limited interactions with him, and she and defendant were not in a relationship (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 12 and n 8 [2006]; see generally People v Miller, 186 AD3d 1095, 1096 [4th Dept 2020], lv denied 36 NY3d 903 [2020]; People v Lewis, 178 AD3d 864, 865 [2d Dept 2019], lv denied 35 NY3d 902 [2020]; People v Smith, 144 AD3d 652, 653 [2d Dept 2016], lv denied 28 NY3d 915 [2017]). We thus conclude that the court properly determined the appropriate risk level.

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court