People v. Granzeier

People v Granzeier (2016 NY Slip Op 01816)

People v Granzeier

2016 NY Slip Op 01816

Decided on March 16, 2016

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 16, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
JOHN M. LEVENTHAL
SANDRA L. SGROI
SYLVIA O. HINDS-RADIX, JJ.

2015-03633

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

v

David Granzeier, appellant.

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

Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, and Jeanette Lifschitz of counsel; Lorrie A. Zinno on the brief), for respondent.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Queens County (Margulis, J.), dated April 8, 2015, 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.

Contrary to the defendant's contention, the Supreme Court properly assessed 30 points under risk factor 3 (number of victims) and 20 points under risk factor 7 (relationship with victim) based upon his conviction, in Florida, of possession of a sexual performance by a child (see People v Gillotti, 23 NY3d 841; People v Johnson, 11 NY3d 416; People v Nethercott, 119 AD3d 918).

The Supreme Court's determination to designate the defendant a level two sex offender was based upon its assessment of a total of 80 points under the risk assessment instrument (see Correction Law § 168-k[2]). The court did not upwardly depart to a risk level two. Thus, the defendant's contention that the court erroneously granted an upward departure is without merit.

The defendant's remaining contention, that there was a "compelling basis" for a downward departure, is unpreserved for appellate review (see People v Johnson, 11 NY3d at 421; People v Estrella, 90 AD3d 879).

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

RIVERA, J.P., LEVENTHAL, SGROI and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court