People v Copeland

People v Copeland 2010 NY Slip Op 09112 [79 AD3d 716] December 7, 2010 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 16, 2011

The People of the State of New York, Respondent,
v
Mark Copeland, Appellant.

—[*1]

Appeal by the defendant from an order of the County Court, Nassau County (Calabrese, J.), dated September 6, 2007, which, after a hearing, designated him as a level two 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 County Court's designation of him as a level two sex offender under the Sex Offender Registration Act (Correction Law art 6-C; hereinafter SORA) was supported by clear and convincing evidence (see Correction Law § 168-n [3]). The County 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 SORA hearing, 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, 77 AD3d 897 [2010]).

Moreover, the County Court providently exercised its discretion in denying the defendant's request for a downward departure, as the defendant failed to present clear and convincing evidence of a mitigating factor "of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines" (SORA: Risk Assessment Guidelines and Commentary, at 4 [2006]; see People v Cruz, 74 AD3d 1305, 1306 [2010]; People v Colavito, 73 AD3d 1004, 1005 [2010]; People v Bowens, 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, 56 AD3d 978, 979 [2008]). Rivera, J.P., Dickerson, Lott and Roman, JJ., concur.