| People v Iorio |
| 2010 NY Slip Op 05745 [74 AD3d 1306] |
| June 29, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Ronald Iorio, Appellant. |
—[*1] Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart andMichael Shollar of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Richmond County (Rienzi, J.),dated January 25, 2008, which, after a hearing, designated him a level three sex offenderpursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
The defendant contends that the Supreme Court erred in designating him a level three sexoffender in that the weapon he allegedly used in the commission of his predicate offenses wasnot a "dangerous instrument," and, in any event, that such implement was not used in thecommission of those offenses. The defendant's contention that he did not use the implement isunpreserved for appellate review (see People v Kelly, 46 AD3d 790, 791 [2007]) and, inany event, is without merit, as is his contention that the implement was not a "dangerousinstrument" (see Penal Law § 10.00 [13]; People v Pettigrew, 14 NY3d406, 409 [2010]; People v Chambers, 66 AD3d 748 [2009]; People v Richard, 30AD3d 750, 753 [2006]; People v Madeo, 103 AD2d 901, 902 n [1984]; People vJones, 54 AD2d 740 [1976]).
The defendant's contention that he was entitled to a downward departure from hispresumptive level three risk assessment is unpreserved for appellate review and, in any event,without merit (see People v McKee, 66 AD3d 854, 855 [2009]; People v Rivera,51 AD3d 646 [2008]; People v Lewis, 50 AD3d 1567, 1568 [2008]; People vAdams, 44 AD3d 1020 [2007]).
The defendant's remaining contention is without merit (see People v Stultz, 2 NY3d277, 287 [2004]; People v Austin, 54 AD3d 916, 917 [2008]; People v Lamberty,45 AD3d 486 [2007]).
Motion by the appellant on an appeal from an order of the Supreme Court, RichmondCounty, dated January 25, 2008, inter alia, to strike the respondent's brief and addendum theretoon the ground that they contain and refer to matter dehors the record. By decision and order ofthis Court dated May 14, 2010 [2010 NY Slip Op 71551(U)], that branch of the motion whichwas to strike the respondent's brief and addendum thereto was held in abeyance, and was referredto the panel of Justices hearing the appeal for determination upon the argument or submissionthereof.
Upon the papers filed in support of the motion, the papers filed in opposition thereto, andupon the argument of the appeal, it is
Ordered that the branch of the motion which was to strike the respondent's brief andaddendum thereto is granted to the extent that the addendum and any references thereto in thebrief are stricken, and they have not been considered in the determination of the appeal, and thatbranch of the motion is otherwise denied. Dillon, J.P., Miller, Eng and Chambers, JJ., concur.