People of State of New York, respondent, v. Samuel Samuel, appellant. (2017)

Submitted—October 5, 2017

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Richmond County (Rooney, J.), dated July 23, 2014, 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 appeals from his designation as a level three sex offender pursuant to the Sex Offender Registration Act (see Correction Law art 6–C).

Since the defendant had already been released from incarceration before he became classified as a “sex offender” as a result of his conviction (Correction Law § 168–a[1] ), the Supreme Court did not err in determining the defendant's risk level based on a risk assessment instrument prepared by the District Attorney's office instead of the Board of Examiners of Sex Offenders (see Correction Law §§ 168–d[3];  168–l[8];  People v. Jean–Bart, 145 AD3d 690, 691;  People v. Grimm, 107 AD3d 1040, 1042–1043).

The Supreme Court properly denied the defendant's application for a downward departure from his presumptive risk level designation, as he failed to establish the existence of any mitigating circumstances that are of a kind or to a degree not adequately taken into account by the Guidelines (see Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary [2006];  People v. Gillotti, 23 NY3d 841, 861;  People v. Rocano–Quintuna, 149 AD3d 1114, 1115;  People v. Santiago, 137 AD3d 762, 765;  People v. McKee, 66 AD3d 854, 855).

The defendant's remaining contention is unpreserved for appellate review and, in any event, without merit.

RIVERA, J.P., HALL, MILLER and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court