Summary
The Appellate Division, Second Department affirmed a County Court order designating the defendant as a level two sex offender pursuant to New York's Sex Offender Registration Act. The court held that the defendant's challenges to the risk assessment scoring and his request for a downward departure were unpreserved for appellate review because he failed to object or make such requests at the SORA hearing. Addressing the merits, the court further determined that the defendant did not establish that a downward departure was warranted. The lower court's order was therefore affirmed without costs.
Topics
Practice areas
Questions Presented
- Whether the County Court’s assessment of risk‑factor points is reviewable when the appellant failed to preserve the objection at the SORA hearing
- Whether the appellant is entitled to a downward departure based on mitigating factors when he failed to request such a departure at the hearing
Holdings
- The assessment is unpreserved and therefore not subject to appellate review; the County Court’s designation stands.
- The appellant’s claim for a downward departure is unpreserved and therefore unavailable; the County Court’s designation is affirmed.
Key quotations
“The defendant's contention, in effect, that the County Court improperly assessed 15 points under risk factor 11 is unpreserved for appellate review, since he did not object to the assessment of these points at the SORA hearing (see People v. Melendez, 210 AD3d 1121, 1122; People v. Bethel, 165 AD3d 712, 713).” (210 AD3d 1121)
Factual background
Jose Velasco‑Morales was designated a level two sex offender after the County Court assessed him 85 points on the statutory risk‑assessment instrument. He contested the assessment of 15 points under risk factor 11 and sought a downward departure based on mitigating factors, but he raised neither objection nor request at the SORA hearing.
Procedural history
The County Court, Rockland County, after a hearing, assessed the defendant 85 points on the risk‑assessment instrument and designated him a level two sex offender. The defendant appealed, arguing that the assessment of 15 points under risk factor 11 and his request for a downward departure were unpreserved. The Appellate Division affirmed the order.