People v. Moran , 148 A.D.3d 1189 ( 2017 )

People v Moran (2017 NY Slip Op 02452)

People v Moran

2017 NY Slip Op 02452

Decided on March 29, 2017

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 29, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
L. PRISCILLA HALL, J.P.
LEONARD B. AUSTIN
SANDRA L. SGROI
FRANCESCA E. CONNOLLY, JJ.

2016-10725

[*1]People of State of New York, respondent,

v

Richard Llanga Moran, appellant.

Jeffrey D. Cohen, Kew Gardens, NY, for appellant.

Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Anastasia Spanakos, and Ayelet Sela of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Queens County (Margulis, J.), dated September 14, 2016, 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 possession of child pornography in violation of 18 USC § 2252A(a)(4)(B) and was sentenced to a term of imprisonment plus supervised release. Prior to his release from prison, the Supreme Court conducted a hearing pursuant to the Sex Offender Registration Act (see Correction Law art 6-C; hereinafter SORA) to determine the defendant's risk level designation. The court assessed a total of 80 points against the defendant under risk factors 3 (number of victims—three or more), 5 (age of victim—10 or less), and 7 (relationship with victim—stranger) of the risk assessment instrument and designated him a level two sex offender. The defendant appeals.

At the SORA hearing, the defendant challenged the assessment of points under risk factors 3 and 7. However, the defendant never argued before the Supreme Court that, even if points were assessed under risk factors 3 and 7, he was entitled to a downward departure, and the defendant never presented any mitigating factors to the court. Thus, his contention on appeal that the court should have exercised its discretion by granting him a downward departure is unpreserved for appellate review (see People v Gillotti, 23 NY3d 841, 861 n 5; People v Johnson, 11 NY3d 416, 421-422; People v Broadus, 142 AD3d 595, 596). In any event, the defendant's contention is without merit (see People v Rossano, 140 AD3d 1042, 1043).

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

HALL, J.P., AUSTIN, SGROI and CONNOLLY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court