Opinion
12-02-2015
PEOPLE of State of New York, respondent, v. Anthony CUMMINGS, appellant.
Seymour W. James, Jr., New York, N.Y. (Michael C. Taglieri of counsel), for appellant. Daniel L. Master, Jr., Acting District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and Anne Grady of counsel), for respondent.
Seymour W. James, Jr., New York, N.Y. (Michael C. Taglieri of counsel), for appellant.
Daniel L. Master, Jr., Acting District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and Anne Grady of counsel), for respondent.
Opinion
Appeal by the defendant from an order of the Supreme Court, Richmond County (Meyer, J.), dated March 21, 2012, 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 had previously been convicted of a felony sex crime (see People v. Goods, 121 A.D.3d 660, 992 N.Y.S.2d 810; People v. Smalls, 120 A.D.3d 1145, 992 N.Y.S.2d 880; People v. Carter, 85 A.D.3d 995, 925 N.Y.S.2d 874). Therefore, the defendant was presumptively a level three sex offender pursuant to an automatic override addressing prior felony convictions for sex crimes, irrespective of the points scored on the risk assessment instrument (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 3–4 [2006]; People v. Barfield, 115 A.D.3d 835, 982 N.Y.S.2d 369). Further, the Supreme Court properly denied the defendant's application for a downward departure from the presumptive risk level (see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1; People v. Wyatt, 89 A.D.3d 112, 128, 931 N.Y.S.2d 85).
RIVERA, J.P., DICKERSON, MILLER and MALTESE, JJ., concur.