Opinion
2015-01-21
PEOPLE of State of New York, respondent, v. Timothy RICHARDSON, appellant.
Mark Diamond, New York, N.Y., for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Hae Jin Liu, Jennifer L. Spencer, and Laurie G. Sapakoff of counsel), for respondent.
Mark Diamond, New York, N.Y., for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Hae Jin Liu, Jennifer L. Spencer, and Laurie G. Sapakoff of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Westchester County (Molea, J.), entered December 3, 2013, 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 proved by clear and convincing evidence that the defendant had previously been convicted of a felony sex offense. Accordingly, the Supreme Court properly determined that he was presumptively a level three offender without regard to the number of points assessed 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, 835, 982 N.Y.S.2d 369; People v. Manson, 111 A.D.3d 688, 688, 974 N.Y.S.2d 792; People v. Henry, 107 A.D.3d 678, 679, 966 N.Y.S.2d 499).
The defendant failed to establish by a preponderance of the evidence any circumstance that could have been a basis for a downward departure ( see People v. Gillotti, 23 N.Y.3d 841, 861, 864, 994 N.Y.S.2d 1, 18 N.E.3d 701; People v. Henry, 107 A.D.3d at 679, 966 N.Y.S.2d 499). Accordingly, the Supreme Court did not have discretion to downwardly depart from the presumptive risk level, and it properly designated the defendant a level three sex offender ( see People v. Henry, 107 A.D.3d at 679, 966 N.Y.S.2d 499).
The defendant's remaining contentions either are without merit, are unpreserved for appellate review, or have been renderedacademic in light of our determination. BALKIN, J.P., CHAMBERS, HINDS–RADIX and MALTESE, JJ., concur.