| People v Serrano |
| 2009 NY Slip Op 03495 [61 AD3d 946] |
| April 28, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Sammy Serrano, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (William C. Milaccio, RichardLongworth Hecht, and Anthony J. Servino of counsel), for respondent.
Appeal by the defendant from an order of the County Court, Westchester County (Cohen, J.),dated May 9, 2008, which, after a hearing, designated him a level three sex offender pursuant toCorrection Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
The defendant was convicted of sodomy in the first degree, sexual abuse in first degree,unlawful imprisonment in the second degree, and endangering the welfare of a child. Thedefendant sexually assaulted his roommate in a psychiatric hospital where the defendant hadbeen admitted the night before the assault.
Contrary to the defendant's contentions, the hearing court properly assessed points for riskfactor 7 because he was a stranger to the victim (see People v Lewis, 45 AD3d 1381 [2007]). The defendant and thevictim met for the first time the night before the assault. Although the victim knew thedefendant's name, there was no evidence that either knew anything else about the other.Moreover, initially the defendant attempted to entice the victim to consent to the act by tellinghim that he was a gang member and that it was an initiation, relying on the fact that the victimknew little, if anything at all, about the defendant. Accordingly, the hearing court properlydetermined that the defendant and the victim were strangers (see People v Gaines, 39 AD3d 1212 [2007]; cf. People v McGraw, 24 AD3d525 [2005]).
Further, the defendant conceded the assessment of points for risk factor 5, for the victimbeing under 16 years of age, and for risk factor 8, for the defendant being under 20 years of ageat [*2]the time he committed this sex offense. Accordingly, hisclaims challenging the assessment of those points are unpreserved for appellate review (see People v Kelly, 46 AD3d 790[2007]).
A departure from the presumptive risk level is warranted where "there exists an aggravatingor mitigating factor of a kind or to a degree not otherwise taken into account by the guidelines"(Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [2006]).Here, the defendant failed to meet his burden of establishing the appropriateness of a downwarddeparture (see People v Derrico, 55AD3d 810, 811 [2008]). Thus, the County Court providently exercised its discretion indenying such a departure. Skelos, J.P., Dillon, Leventhal and Chambers, JJ., concur.