| People v Copeland |
| 2010 NY Slip Op 09112 [79 AD3d 716] |
| December 7, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v MarkCopeland, Appellant. |
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Appeal by the defendant from an order of the County Court, Nassau County (Calabrese, J.), datedSeptember 6, 2007, which, after a hearing, designated him as a level two sex offender pursuant toCorrection Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
Contrary to the defendant's contention, the County Court's designation of him as a level two sexoffender under the Sex Offender Registration Act (Correction Law art 6-C; hereinafter SORA) wassupported by clear and convincing evidence (see Correction Law § 168-n [3]). TheCounty Court properly assessed 25 points under risk factor two and 20 points under risk factor four(see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 9-10[2006]). The victim's sworn statement and the presentence report, offered by the People at the SORAhearing, constituted "reliable hearsay" (Correction Law § 168-n [3]; see People v Mingo, 12 NY3d 563,573-574 [2009]), and provided a sufficient basis for the assessment of those points (see People v Pettigrew, 14 NY3d 406,408-409 [2010]; People v Johnson, 77AD3d 897 [2010]).
Moreover, the County Court providently exercised its discretion in denying the defendant's requestfor a downward departure, as the defendant failed to present clear and convincing evidence of amitigating factor "of a kind, or to a degree, that is otherwise not adequately taken into account by theguidelines" (SORA: Risk Assessment Guidelines and Commentary, at 4 [2006]; see People v Cruz, 74 AD3d 1305,1306 [2010]; People v Colavito, 73AD3d 1004, 1005 [2010]; People vBowens, 55 AD3d 809, 810 [2008]).
The defendant's remaining contentions are unpreserved for appellate review (see People v Charache, 9 NY3d 829,830 [2007]; People v McElhearn, 56AD3d 978, 979 [2008]). Rivera, J.P., Dickerson, Lott and Roman, JJ., concur.