PEOPLE v. DESIR (2024)

DECISION & ORDER

Appeal by the defendant from an order of the County Court, Rockland County (Larry J. Schwartz, J.), dated April 6, 2022, 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 of course of sexual conduct against a child in the first degree, upon a plea of guilty.

On April 6, 2022, the County Court held a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6–C;  hereinafter SORA).  The defendant's contentions on appeal regarding the assessment of points under risk factor 2 (sexual contact with victim) and risk factor 5 (age of victim) on the risk assessment instrument are unpreserved for appellate review, as he failed to raise these factors at the SORA hearing (see People v. Rosales, 133 A.D.3d 733, 733, 19 N.Y.S.3d 176;  People v. Fernandez, 91 A.D.3d 737, 738, 936 N.Y.S.2d 556), and we decline to exercise our interest of justice jurisdiction to reach the issues (see People v. Butler, 157 A.D.3d 727, 730, 69 N.Y.S.3d 66).

The defendant's contention, raised for the first time on appeal, that he is entitled to a downward departure based on purported mitigating circumstances, including his lack of criminal history, acceptance of responsibility, and behavior in jail, is also unpreserved for appellate review, as he failed to raise those factors at the SORA hearing (see People v. Howard, 190 A.D.3d 773, 775, 135 N.Y.S.3d 869;  People v. Wilcox, 178 A.D.3d 1107, 1109, 117 N.Y.S.3d 310), and we decline to exercise our interest of justice jurisdiction to reach the issues.

Accordingly, the County Court properly designated the defendant a level two sex offender.

DILLON, J.P., DUFFY, CHRISTOPHER and LANDICINO, JJ., concur.