- Court
- New York Supreme Court, Appellate Division, Second Department
- Case
- People v. Mazzio
- Date
- June 3, 2026
- Slip Op. No.
- 2026 NY Slip Op 03456
Background
Following a hearing under the Sex Offender Registration Act (SORA), defendant Eugene Mazzio was designated a level three sex offender by Supreme Court, Queens County (Ira H. Margulis, J.). Defendant challenged the assessment of 20 points under risk factor 13 for unsatisfactory conduct with sexual misconduct while confined. He also contended that mitigating factors warranted a downward departure from the presumptive risk level. Defendant appealed.
Holding
The Appellate Division, Second Department, affirmed the designation, without costs or disbursements. The Court held that the Supreme Court properly assessed 20 points under risk factor 13 based on the defendant’s unsatisfactory conduct with sexual misconduct while confined, citing People v. Padgett, 170 AD3d 1054; People v. LeGrand, 152 AD3d 722; and People v. Lawson, 90 AD3d 1006, 1007.
The defendant’s claim for a downward departure was unpreserved for appellate review because he did not request a downward departure at the SORA hearing, citing People v. Aguirre, 217 AD3d 784, and People v. Titone, 209 AD3d 888, 889. Even on the merits, the Court found defendant failed to establish that a downward departure was warranted. The level three designation, carrying the most restrictive registration and notification requirements, was upheld.
Takeaways
This decision reinforces two important SORA practice points. First, evidence of sexual misconduct while incarcerated supports assessment of points under risk factor 13, reflecting the defendant’s continuing risk to the community. Second, and critically, a request for a downward departure must be made at the SORA hearing itself to preserve the issue for appellate review. Defense counsel who fail to request the departure on the record forfeit the right to raise it on appeal, regardless of the merits.
Why It Matters
Defense attorneys handling SORA hearings must ensure that all arguments, including requests for downward departures and objections to specific risk factor assessments, are placed on the record during the hearing. The preservation requirement is strictly enforced, and failure to raise an issue at the hearing level will result in its being deemed waived. This procedural trap is particularly significant in SORA cases because a level three designation carries lifetime registration requirements and significant collateral consequences that cannot be undone on appeal if the argument was not preserved below.