People v Noeker

People v Noeker 2017 NY Slip Op 08703 Decided on December 13, 2017 Appellate Division, Second 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 December 13, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
JEFFREY A. COHEN
FRANCESCA E. CONNOLLY
LINDA CHRISTOPHER, JJ.
2016-09653

[*1]People of State of New York, respondent,

v

Richard Noeker, appellant.

Laurette D. Mulry, Riverhead, NY (Kirk R. Brandt of counsel), for appellant.

Emily Constant, Acting District Attorney, Riverhead, NY (Rosalind C. Gray of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), dated August 10, 2016, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6-C.

ORDERED that the order is affirmed, without costs or disbursements.

The defendant challenges his designation as a level two sex offender pursuant to the Sex Offender Registration Act (see Correction Law art 6-C [hereinafter SORA]) following his conviction upon a plea of guilty to 8 counts of promoting a sexual performance by a child in violation of Penal Law § 263.15 and 21 counts of possessing a sexual performance by a child in violation of Penal Law § 263.16.

The defendant's contention that the County Court improperly assessed 30 points under risk factor 3 (number of victims) is unpreserved for appellate review, since he did not raise this issue at the SORA hearing (see People v Destio, 145 AD3d 1047, 1048). In any event, this contention is without merit (see People v Gillotti, 23 NY3d 841, 845; People v Nethercott, 119 AD3d 918; People v Brown, 116 AD3d 1017). Further, contrary to the defendant's contention, the court properly assessed 20 points under risk factor 7 (relationship with victim) (see People v Gillotti, 23 NY3d at 854; People v Johnson, 11 NY3d 416, 418-420; People v Nethercott, 119 AD3d 918; People v Brown, 116 AD3d 1017).

The defendant's contention that he was entitled to a downward departure is unpreserved for appellate review because he did not request a downward departure from his presumptive designation as a level two sex offender during the SORA hearing (see People v Sweat, 147 AD3d 802, 802). In any event, this contention is without merit (see id.).

DILLON, J.P., COHEN, CONNOLLY and CHRISTOPHER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court