People v Callendar, 2015 NY Slip Op 03512 [127 AD3d 1153]

April 29, 2015

Appellate Division, Second Department

[*1]

The People of the State of New York, Respondent,

v

Jason Callendar, Appellant.

Seymour W. James, Jr., New York, N.Y. (Susan Epstein of counsel), for appellant.

Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent.

Appeal by the defendant from an order of the Supreme Court, Kings County (DiMango, J.), dated March 23, 2012, which, after a hearing, adjudicated him 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, he was properly assessed points for risk factor 14 ( see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 17 [2006] [hereinafter the Guidelines]). The People demonstrated, by clear and convincing evidence, that the defendant’s release from State custody was not conditioned upon any course of supervision ( see People v McNeil , 116 AD3d 1018 , 1018 [2014]; People v Rouff , 49 AD3d 517 , 517 [2008]; cf. People v Lewis , 37 AD3d 689 , 690 [2007]). Furthermore, contrary to the defendant’s contention, the Supreme Court lacked the discretion to downwardly depart from the presumptive risk level, since the defendant failed to identify a mitigating factor not otherwise adequately taken into account by the Guidelines ( see People v Sooknanan , 119 AD3d 540 , 540 [2014]; People v Reede , 113 AD3d 663 , 664 [2014]; People v Martinez , 104 AD3d 924 , 925 [2013]). Mastro, J.P., Dillon, Hall and Miller, JJ., concur..