Case Information

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v ELLIS WIMBERLY, Appellant.

Supreme Court, Appellate Division, First Department, New York

February 28, 2005

824 NYS2d 80

Ruth L. Sussman, J.

Order, Supreme Court, New York County (Ruth L. Sussman, J.), entered on or about February 28, 2005, which adjudicated defendant a level three sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The People met their burden of establishing various risk factors bearing a sufficient total point score to support a level three sex offender adjudication. Even if defendant's out-of-state robbery convictions did not qualify as prior violent felonies for sex offender classification purposes, they at least qualified as felonies for such purposes (cf. Penal Law 10.00 [5]; People v Parker, 41 NY2d 21 [1976]; People v Ortiz, 283 AD2d 256 [2001], lv denied 96 NY2d 922 [2001]). Therefore, even if the court should have assessed 15 points under the criminal history category for a prior felony, instead of 30 points for a prior violent felony, the total would have been 115 points, which is still above the amount required for a level three adjudication.

We have considered and rejected defendant's remaining arguments regarding this risk factor, as well his challenges to other points assessed by the court. Concur—Mazzarelli, J.P., Friedman, Sullivan, Catterson and Malone, JJ.