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THE PEOPLE, res, v. MARIO VALDIVIA, def-app

16-022. THE PEOPLE, res, v. MARIO VALDIVIA, def-app — Order (Neil E. Ross, J.), dated December 23, 2010, affirmed.

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16-022. THE PEOPLE, res, v. MARIO VALDIVIA, def-app — Order (Neil E. Ross, J.), dated December 23, 2010, affirmed.

The court properly adjudicated defendant a level two sex offender. Defendant’s challenge to the 30 point assessment based upon his prior criminal history is lacking in merit, since he was previously convicted of a misdemeanor sex crime (see People v. Kraegar, 42 AD3d 944 [2007]), specifically, the class A misdemeanor of forcible touching (see Penal Law §130.52; see also People v. Verdelli, 44 Misc 3d 144[A], 2014 NY Slip Op 51410[U] [App Term, 1st Dept. 2014]; People v. Davis, 38 Misc 3d 127[A], 2012 NY Slip Op 52362[U] [App Term, 1st Dept. 2012], lv dismissed 20 NY3d 1093 [2013]). Defendant was also properly assessed 15 points under the factor for lack of supervised release (see People v. Lewis, 37 AD3d 689, 690 [2007], lv denied 8 NY3d 814 [2007]), even if this was a matter beyond defendant’s control (see People v. Tejada, 51 AD3d 472 [2008]).

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