People v. Marks

Jul 7, 2006
Versions:31 A.D.3d 1142
817 N.Y.S.2d 555

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: We reject the contention of defendant that County Court erred in determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.). The court properly assessed 15 points for defendant‘s history of alcohol abuse (see People v Vaughn, 26 AD3d 776 [2006]; People v Moore, 16 AD3d 190 [2005], lv denied 4 NY3d 889 [2005]; People v King, 15 AD3d 693 [2005]), and defendant thus had a score that was 10 points in excess of that necessary to render him a level three risk. In addition, the court properly agreed with the People with respect to the existence of “an ‘override’ factor,” i.e., defendant‘s prior conviction of a sex crime (People v Boan, 11 AD3d 956, 956 [2004], lv denied 4 NY3d 702 [2004]), and we therefore conclude that the People met their “burden of proving the facts supporting the risk level classification sought by clear and convincing evidence” (People v Dort, 18 AD3d 23, 24 [2005], lv denied 4 NY3d 885 [2005]; see Correction Law § 168-n [3]; People v McDaniel, 27 AD3d 1158 [2006]; People v Hamelinck, 23 AD3d 1060 [2005]). Contrary to his further contention, defendant failed to establish his entitlement to a downward departure from the presumptive risk level inasmuch as he failed to present the requisite clear and convincing evidence of the existence of special circumstances warranting a downward departure (see McDaniel, 27 AD3d 1158 [2006]; Hamelinck, 23 AD3d 1060 [2005]; People v Douglas, 18 AD3d 967, 968 [2005], lv denied 5 NY3d 710 [2005]).