People v Fabian-Lopez

People v Fabian-Lopez 2018 NY Slip Op 02714 Decided on April 19, 2018 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 19, 2018
Acosta, P.J., Manzanet-Daniels, Tom, Oing, Singh, JJ.
6331 11722/95

[*1]The People of the State of New York, Respondent,

v

Ramon Fabian-Lopez, Defendant-Appellant.

The Legal Aid Society, New York (Seymour W. James, Jr., of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Kelly L. Smith of counsel), for respondent.

Order, Supreme Court, New York County (Cassandra A. Mullen, J.), entered on or about July 29, 2012, which adjudicated defendant a level three sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The court properly assessed defendant 10 points under the risk factor for a living and employment situation that rendered him more difficult for law enforcement authorities to locate (see People v Alemany, 13 NY3d 424, 430 [2009]). The court also properly assessed points under the risk factor for the recency of a prior offense regarding a felony conviction that occurred less than three years before the present offense, even though the prior crime itself occurred earlier (see People v Pinckney, 129 AD3d 1048, 1048 [2015], lv denied 26 NY3d 908 [2015]).

Since defendant did not ask the hearing court for a downward departure, that claim is unpreserved. In any event, we find no basis for a departure (see People v Gillotti, 23 NY3d 841 [2014]).

We have considered and rejected the People's argument that defendant's deportation renders his request for relief academic, and defendant's argument that his deportation is a mitigating factor.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 19, 2018

CLERK