| People v Fernandez |
| 2012 NY Slip Op 00347 [91 AD3d 737] |
| January 17, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Manuel Fernandez, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J.Dennehy of counsel; Benjamin Barczewski on the brief), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Firetog, J.),dated September 10, 2009, which, after a hearing, designated him a sexually violent offender anda level two sex offender pursuant 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 denying his request for a downwarddeparture from his presumptive level two risk assessment.
A downward departure from the presumptive risk level is generally only warranted wherethere exists a mitigating factor of a kind, or to a degree, that is not otherwise adequately takeninto account by the Sex Offender Registration Act (hereinafter SORA) Guidelines (seeSex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [2006];People v Martin, 90 AD3d 728[2d Dept 2011]). Here, the factor upon which the defendant relied to support his request for adownward departure was his participation in a sex offender treatment program. However, therecord before us in this case establishes that the defendant failed to demonstrate the existence ofany special circumstances not adequately taken into account by the SORA Guidelines (see People v Wyatt, 89 AD3d 112,129-130 [2011], lv denied 18 NY3d 803 [2012]; cf. People v Migliaccio, 90 AD3d879 [2d Dept 2011]).
The defendant's contention that several other factors warrant a downward departure isunpreserved for appellate review, as he failed to raise these factors at the SORA hearing (see People v Spring, 83 AD3d1028 [2011]; People v Iorio, 74AD3d 1306, 1307 [2010]; People vMoore, 16 AD3d 190, 190-191 [2005]). In any event, the defendant's contention iswithout merit.
Accordingly, the Supreme Court correctly denied the defendant's request for a downwarddeparture. Mastro, A.P.J., Angiolillo, Belen and Lott, JJ., concur.