| People v Torres |
| 2013 NY Slip Op 01251 [103 AD3d 868] |
| February 27, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Richard Torres, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Anthea H.Bruffee of counsel; David Schiavone on the brief), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County(Brennan, J.), dated February 18, 2011, which, after a hearing, designated him a leveltwo sex offender pursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
Contrary to the defendant's contention, the Supreme Court properly assessed 30points under risk factor 9 based upon his prior youthful offender adjudication for theviolent felony of robbery in the first degree (see Sex Offender Registration Act:Risk Assessment Guidelines and Commentary at 13 [2006] [hereinafter the Guidelinesand Commentary]; People vVasquez, 89 AD3d 816 [2011]; People v Masters, 19 AD3d 387 [2005]; People v Moore, 1 AD3d421 [2003]). The defendant contends that certain provisions of CPL 720.35 conflictwith and supersede the provisions in the Guidelines and Commentary permittingconsideration of a youthful offender adjudication under risk factor 9. However, thedefendant concedes that, even excluding his past youthful offender adjudication forrobbery, he would have been assessed 15 points under risk factor 9 for his other priorcriminal history, and the resulting score still would have been within presumptive risklevel two. Moreover, the defendant failed to satisfy the twofold "threshold condition" insupport of his application for a downward departure to risk level one (People v Wyatt, 89 AD3d112, 128 [2011]). Accordingly, the Supreme Court properly designated him a risklevel two sex offender. Mastro, J.P., Angiolillo, Chambers and Cohen, JJ., concur.