PEOPLE v. CATALANO (2025)

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Suffolk County (Chris Ann Kelley, J.), dated June 30, 2020, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6–C.

ORDERED that the order is affirmed, without costs or disbursements.

The defendant was convicted of certain sex offenses in Connecticut.  After the defendant relocated to New York, a hearing was held to determine the defendant's risk level pursuant to the Sex Offender Registration Act (SORA) (Correction Law art 6–C).  By order dated June 30, 2020, the Supreme Court designated the defendant a level three sex offender.  The defendant appeals, arguing that the court erred in its assessment of points and that he was deprived of the effective assistance of counsel.

As the People correctly contend, the defendant's arguments regarding the assessment of points under risk factor 5 (age of victim) and risk factor 7 (relationship with victim) are unpreserved for appellate review since the defendant did not specifically challenge the assessment of points under those factors at the SORA hearing (see CPL 470.05[2];  People v. Desir, 224 A.D.3d 707, 203 N.Y.S.3d 192;  People v. Jones, 197 A.D.3d 1348, 1349, 151 N.Y.S.3d 904).  In any event, the Supreme Court's points assessment was proper.  The People's proof established by clear and convincing evidence that the defendant reached under the clothing of a victim and touched an intimate area of the body (see People v. Ase, 222 A.D.3d 789, 790, 202 N.Y.S.3d 375), victimized three or more children (see People v. Morrison, 156 A.D.3d 831, 832, 67 N.Y.S.3d 246), committed multiple sexual acts that were separated in time from each other by at least 24 hours (see People v. Torres, 217 A.D.3d 976, 976–977, 192 N.Y.S.3d 205), committed sexual abuse against a victim who was 10 years old or younger (see People v. Brown, 194 A.D.3d 861, 862, 143 N.Y.S.3d 610), and abused his professional relationship as the victims’ piano teacher (see People v. Moore–Johnson, 178 A.D.3d 1102, 1103, 112 N.Y.S.3d 588;  see also People v. Farrell, 78 A.D.3d 1454, 1455, 912 N.Y.S.2d 140).

The defendant was not deprived of the effective assistance of counsel.  The record demonstrates that a request for a downward departure from the defendant's presumptive risk level would have had little or no chance of success, and there is no reasonable probability that, had defense counsel requested a downward departure, the result of the proceeding would have been different (see People v. Robinson, 231 A.D.3d 754, 756, 220 N.Y.S.3d 330).

Accordingly, the Supreme Court properly designated the defendant a level three sex offender.

DILLON, J.P., IANNACCI, DOWLING and MCCORMACK, JJ., concur.