PEOPLE v. FRANCO (2025)

DECISION & ORDER

Appeal by the defendant from an order of the County Court, Rockland County (Larry J. Schwartz, J.), entered July 21, 2023.  The order, after a hearing, designated the defendant 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 course of sexual conduct against a child in the first degree (Penal Law § 130.75[1][b]) and sentenced to a determinate term of imprisonment of 10 years, to be followed by a period of postrelease supervision of 10 years.  After a hearing conducted pursuant to the Sex Offender Registration Act (Correction Law art 6–C;  hereinafter SORA), the County Court assessed the defendant 75 points, presumptively placing him within the range for a level two designation, and designated him a level two sex offender.

The defendant's contention that a downward departure from his presumptive risk level is warranted based on purported mitigating factors is unpreserved for appellate review, since he did not request a downward departure at the SORA hearing (see People v. Pomavilla–Loja, 230 A.D.3d 1359, 1359, 217 N.Y.S.3d 246;  People v. Valencia, 225 A.D.3d 637, 637, 206 N.Y.S.3d 181).  In any event, the defendant failed to establish that a downward departure is warranted (see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701;  People v. Pareja–Hidalgo, 222 A.D.3d 892, 893, 203 N.Y.S.3d 109;  People v. Saunders, 209 A.D.3d 776, 778, 174 N.Y.S.3d 899).

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

BARROS, J.P., DOWLING, VENTURA and MCCORMACK, JJ., concur.