| People v Wise |
| 2015 NY Slip Op 02949 [127 AD3d 834] |
| April 8, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Steven Wise, Appellant. |
Kent V. Moston, Hempstead, N.Y. (Jeremy L. Goldberg and David Bernstein ofcounsel), for appellant.
Kathleen M. Rice, District Attorney, Mineola, N.Y. (Laurie K. Gibbons and RebeccaL. Abensur of counsel), for respondent.
Appeal by the defendant from an order of the County Court, Nassau County(O'Brien, J.), entered December 19, 2012, 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 assessment of 20 points against him underrisk factor 7 for his establishment of a relationship with an undercover police officerposing as a 13-year-old girl for the purpose of victimizing the fictitious child wassupported by clear and convincing evidence (see People v Hemmes, 110 AD3d 1387, 1388 [2013]; People v DeDona, 102 AD3d58, 64 [2012]). Further, the assessment of 15 points pursuant to risk factor 11 basedupon the defendant's lengthy and intense history of substance abuse also was supportedby clear and convincing evidence (see People v Zavala, 114 AD3d 653, 654 [2014]; People v Finizio, 100 AD3d977, 978 [2012]; People vCrandall, 90 AD3d 628, 629 [2011]).
A risk assessment instrument generally results in a presumptive risk leveldetermination (Sex Offender Registration Act: Risk Assessment Guidelines andCommentary at 4 [2006]) (hereinafter Guidelines), and a court may downwardly departfrom the presumptive risk level where "there exists . . . [a] mitigating factorof a kind, or to a degree, that is otherwise not adequately taken into account by theguidelines" (Guidelines at 4; seePeople v Gillotti, 23 NY3d 841 [2014]; People v Wyatt, 89 AD3d 112 [2011]). Here, the CountyCourt properly concluded that the defendant failed to identify an appropriate mitigatingfactor that warranted a downward departure and, therefore, properly denied his requestfor that relief (see People vWortham, 119 AD3d 666 [2014]).
The defendant's contention that the prosecution's failure to turn over a federalpresentence investigation report to him prior to the hearing deprived him of due processand violated Correction Law § 168-n (3) is unpreserved for appellatereview, since he never advanced that argument at the hearing (see People v Charache, 9NY3d 829, 830 [2007]; People v Kotler, 123 AD3d 992, 993 [2014]; People v Williamson, 73 AD3d1398 [2010]; People v Cureton, 299 AD2d 532 [2002]). In any event, thecontention is without merit, as the defendant received the report at the outset of thehearing, was afforded ample time to review it, and made effective use of it during theproceeding. Mastro, J.P., Dillon, Hall and Miller, JJ., concur.