Summary
This Appellate Division decision reviews a County Court order designating the defendant as a level two sex offender under the Sex Offender Registration Act following his guilty plea for sexual conduct against a child. The court affirmed the lower court's determination, finding that the defendant failed to preserve a claim for downward departure by not requesting it at the SORA hearing and failing to establish entitlement to such relief on the merits. Consequently, the presumptive level two designation based on a 75-point assessment was upheld.
Topics
Practice areas
Questions Presented
- Whether the appellate court may review the County Court's level two sex offender designation when the appellant failed to request a downward departure at the SORA hearing.
Holdings
- The appellate court affirmed the County Court's designation because the appellant's claim for a downward departure was unpreserved and he failed to establish entitlement to such a departure.
Key quotations
“The defendant's contention that a downward departure from his presumptive risk level is warranted based on purported mitigating factors is unpreserved for appellate review, since he did not request a downward departure at the SORA hearing.”
Factual background
Wilfredo Franco was convicted of sexual conduct against a child in the first degree, sentenced to ten years imprisonment followed by ten years post‑release supervision. The County Court assessed 75 points under the Sex Offender Registration Act and designated him a level two sex offender. Franco sought a downward departure based on mitigating factors but did not request it at the SORA hearing.
Procedural history
The County Court, Rockland County, designated the defendant a level two sex offender after a hearing under SORA. The defendant appealed, arguing a downward departure was warranted, but the appellate division affirmed the designation.