Opinion
2011-11-1
PEOPLE of State of New York, respondent,v.Apolonio ABREU, appellant.
Lynn W.L. Fahey, New York, N.Y. (Katherine A. Levine of counsel), for appellant.Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Linda Breen of counsel; Reuben Arnold on the brief), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Dowling, J.), dated September 22, 2010, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6–C.
ORDERED that the order is affirmed, without costs or disbursements.
The People established, by clear and convincing evidence, that the defendant strangled his rape victim to death. Accordingly, he was presumptively designated a level three sex offender pursuant to the automatic override which applies to offenders who have inflicted serious physical injury or caused the death of the victim ( see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 3–4 [2006 ed.]; People v. Carter, 85 A.D.3d 995, 925 N.Y.S.2d 874, lv. denied, 17 N.Y.3d 712, 2011 N.Y. Slip Op. 86305, 2011 WL 4835680 [2011]; People v. Fareira, 80 A.D.3d 589, 590, 914 N.Y.S.2d 651; People v. Martin, 79 A.D.3d 717, 718, 912 N.Y.S.2d 299; People v. King, 74 A.D.3d 1162, 1163, 906 N.Y.S.2d 570). Further, the Supreme Court properly determined that the defendant was not entitled to a downward departure from his presumptive risk level ( see People v. Livingston, 87 A.D.3d 628, 928 N.Y.S.2d 473; People v. Alston, 86 A.D.3d 553, 554, 926 N.Y.S.2d 901; People v. Carter, 85 A.D.3d at 995–996, 925 N.Y.S.2d 874; People v. Bussie, 83 A.D.3d 920, 920 N.Y.S.2d 718).
MASTRO, J.P., ENG, BELEN and HALL, JJ., concur.