People v Arocho, 2011 NY Slip Op 01581 [82 AD3d 429]

March 3, 2011

Appellate Division, First Department

— [*1]

Steven Banks, The Legal Aid Society, New York (Joanne Legano Ross of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Megan R. Roberts of counsel), for respondent.

Order, Supreme Court, Bronx County (Megan Tallmer, J.), entered on or about November 5, 2007, which adjudicated defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

Defendant’s contention that he should receive a downward departure from his presumptive risk level is improperly raised for the first time on appeal ( see People v Arps , 65 AD3d 939 [2009]). In any event, we find no basis for such a departure. Defendant’s lack of prior sexual offenses or felonies was adequately taken into account by the risk assessment instrument. We have considered and rejected the remaining circumstances alleged by defendant to be mitigating factors. We also note that defendant’s point score was almost enough for a level three adjudication. Concur—Saxe, J.P., Sweeny, Catterson, Freedman and RomÁn, JJ..