| People v Joe |
| 2010 NY Slip Op 04629 [74 AD3d 404] |
| June 1, 2010 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Delroy Joe, Appellant. |
—[*1]
Order, Supreme Court, New York County (Carol Berkman, J.), entered on or about July 9,2009, which adjudicated defendant a level three sex offender pursuant to the Sex OffenderRegistration Act (Correction Law art 6-C), unanimously affirmed, without costs.
Defense counsel did not render ineffective assistance by failing to object to a pointassessment based on the age of a victim. Counsel could reasonably have found it pointless todemand proof that one of defendant's victims was under 17, since the People would have simplyproduced grand jury minutes establishing that fact. For the same reason, counsel's failure tochallenge this assessment could not have prejudiced defendant.
The court properly exercised its discretion in declining to grant a downward departure fromdefendant's presumptive risk level (seePeople v Mingo, 12 NY3d 563, 568 n 2 [2009]; People v Johnson, 11 NY3d 416, 421 [2008]). The court wasfamiliar with the seriousness of the underlying sex crime, as well as defendant's criminal record.
Defendant's claim that his assessment under the release without supervision category shouldhave been five rather than 15 points is improperly raised for the first time on appeal (see People v Mantilla, 70 AD3d477 [2010]). In any event, acceptance of this argument would lower defendant's point scoreto 120, which is still above the threshold for a level three adjudication, and such a reductionwould not affect our determination that a downward departure is unwarranted.Concur—Gonzalez, P.J., Sweeny, Acosta, Renwick and RomÁn, JJ.