People v. Gardiner
Opinion of the Court
Defendant’s contention that the court should have granted a downward departure to a level two risk is not preserved for our review because defendant did not request a downward departure (see People v Ratcliff, 53 AD3d 1110 [2008], lv denied 11 NY3d 708 [2008]). Finally, contrary to the contention raised by defendant in his pro se supplemental brief, the court properly assessed 25 points against him under risk factor 2, for having deviate sexual intercourse with at least one of the victims. Although defendant was not convicted of having deviate sexual intercourse with his daughter, the case summary states that he had deviate sexual intercourse with the other two victims, and the indictment charges him with having deviate sexual intercourse with one of them. Moreover, the indictment was presumably based upon the victims’ grand jury testimony, which also constitutes reliable hearsay (see People v Howard, 52 AD3d 273 [2008], lv denied 11 NY3d 706 [2008]). Present — Scudder, EJ., Centra, Peradotto, Lindley and Martoche, JJ.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.