| People v Alston |
| 2011 NY Slip Op 05952 [86 AD3d 553] |
| July 12, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Jermaine Alston, 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 (Collini, J.),dated February 5, 2010, which, after a hearing, designated him a level three sex offender pursuantto Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
"A departure from the presumptive risk level is warranted where 'there exists an aggravatingor mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into accountby the guidelines' " (People vBussie, 83 AD3d 920, 920-921 [2011], lv denied 17 NY3d 704 [2011], quoting Sex Offender Registration Act: Risk AssessmentGuidelines and Commentary, at 4 [2006]; see People v Cruz, 74 AD3d 1305, 1306 [2010]). Here, theSupreme Court properly determined that the defendant was not entitled to a downward departureand, thus, properly designated the defendant a level three sex offender (see People v Sivells, 83 AD3d1027 [2011]; People v Bussie,83 AD3d 920 [2011]).
The defendant's remaining contentions are improperly raised for the first time on appeal.Rivera, J.P., Florio, Austin and Cohen, JJ., concur.