PEOPLE v. OLSEN (2021)

ORDERED that the order is affirmed, without costs.

Defendant was convicted of two charges of sexual misconduct (Penal Law § 130.20) and of sexual abuse in the third degree (Penal Law § 130.55).

At a hearing pursuant to the Sex Offender Registration Act (SORA) (see Correction Law § 168-n), defendant was assessed 30 points under risk factor 5 upon the finding that the victim, with whom defendant had engaged in, among other things, anal intercourse, was 10 years old or less. Defendant scored a total of 90 points on the risk assessment instrument, thereby presumptively classifying him a level two sex offender. The People argued that the District Court should upwardly depart from the presumptive risk level to risk level three due to evidence of an incident that was sexual in nature, that occurred in Ohio years earlier, which involved the victim's 10-year-old brother. The court granted the People's request for an upward departure and, by order entered December 16, 2020, the District Court designated defendant a level three sex offender.

On appeal, defendant challenges, among other things, the 30-point assessment under risk factor 5 and argues that only 20 points should have been assessed under this risk factor, and, thus, his risk assessment score should have totaled 80 points.

Even assuming that defendant should have been assessed 20 points under risk factor 5, his risk assessment score would total 80 points which would still place him at a presumptive level two sex offender (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 3 [2006]).

Defendant's remaining contentions, including the issue regarding the upward departure, are unpreserved for appellate review, as he failed to raise these issues at the SORA hearing (see People v Davis, 166 AD3d 820 [2018]), and we decline to review them in the interest of justice.

Accordingly, the order designating defendant a level three sex offender is affirmed.

RUDERMAN, P.J., GARGUILO and VOUTSINAS, JJ., concur.