Opinion
2012-01-10
PEOPLE of State of New York, respondent, v. Bobby PALMER, appellant.
Arza Feldman, Uniondale, N.Y. (Steven A. Feldman of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael J. Brennan of counsel), for respondent.
Arza Feldman, Uniondale, N.Y. (Steven A. Feldman of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael J. Brennan of counsel), for respondent.
Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), dated March 23, 2010, which, after a hearing, designated him a level three sexually violent 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. Therefore, he was presumptively a level three sexually violent 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 ed.]; People v. Carter, 85 A.D.3d 995, 925 N.Y.S.2d 874; People v. Guitard, 57 A.D.3d 751, 752, 871 N.Y.S.2d 205). In any event, contrary to the defendant's contention, he was properly assessed 15 points in the risk assessment instrument under the risk factor for history of drug or alcohol abuse, in light of his criminal history and the information contained in the presentence investigation report and case summary ( see People v. Abrams, 76 A.D.3d 1058, 908 N.Y.S.2d 243).
Furthermore, the County Court properly determined that the defendant was not entitled to a downward departure from his presumptive risk level assessment ( see People v. Abreu, 89 A.D.3d 711, 931 N.Y.S.2d 903; People v. Livingston, 87 A.D.3d 628, 928 N.Y.S.2d 473). Accordingly, the defendant was properly designated a level three sexually violent offender.