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People v. Diaz

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


April 9, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
SALVADOR DIAZ, DEFENDANT-APPELLANT.

Order, Supreme Court, New York County (Roger S. Hayes, J.), entered on or about February 8, 2008, which adjudicated defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

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.

Gonzalez, P.J., Tom, Sweeny, Catterson, Renwick, JJ.

30082/07

The People met their burden of establishing, by clear and convincing evidence, risk factors bearing a sufficient total point score to support a level two sex offender adjudication. The court properly assessed points under the factor for lack of supervised release, even though this was a matter beyond defendant's control (see People v Lewis, 37 AD3d 689, 690 [2007], lv denied 8 NY3d 814 [2007]). The court properly exercised its discretion in denying defendant a downward departure from his presumptive risk level (see People v Guaman, 8 AD3d 545 [2004]). Defendant's remaining contentions are unpreserved and meritless.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090409

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