PEOPLE v. LOZANO (2023)

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Queens County (Richard L. Buchter, J.), dated August 13, 2019, 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.

The defendant was convicted, upon his plea of guilty, of promoting a sexual performance by a child (two counts) (Penal Law § 263.15).  Following a hearing to determine the defendant's risk level pursuant to the Sex Offender Registration Act (Correction Law art 6–C), the Supreme Court assessed the defendant 105 points, including 10 points for not accepting responsibility.  The court designated the defendant a level two sex offender.  On appeal, the defendant argues that the court should not have assessed points against him for not accepting responsibility.

The issue the defendant raises is academic under these circumstances since deducting those points from the total points assessed against the defendant under factors not contested by him would not alter his presumptive risk level (see People v. Johnson, 168 A.D.3d 1110, 1110–1111, 91 N.Y.S.3d 486;  People v. Rosario, 164 A.D.3d 625, 81 N.Y.S.3d 566).

DUFFY, J.P., IANNACCI, CHRISTOPHER and VOUTSINAS, JJ., concur.