Opinion
2013-12-18
PEOPLE of State of New York, respondent, v. Virgil SEALS, appellant.
Steven Banks, New York, N.Y. (Denise Fabiano of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Linda Breen of counsel; Cassandra Volcy on the brief), for respondent.
Steven Banks, New York, N.Y. (Denise Fabiano of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Linda Breen of counsel; Cassandra Volcy on the brief), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Walsh, J.), dated January 30, 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 presented clear and convincing evidence to support a risk level three classification ( see Correction Law § 168–n[3]; People v. Pettigrew, 14 N.Y.3d 406, 901 N.Y.S.2d 569, 927 N.E.2d 1053; People v. Mingo, 12 N.Y.3d 563, 883 N.Y.S.2d 154, 910 N.E.2d 983; People v. Gilligan, 94 A.D.3d 844, 941 N.Y.S.2d 859). The defendant's contention that the hearing court should not have considered his 1979 violent felony conviction in determining his risk assessment is without merit ( see People v. Kitt, 47 A.D.3d 456, 848 N.Y.S.2d 875; People v. Camacho, 35 A.D.3d 424, 824 N.Y.S.2d 719; People v. Oginski, 35 A.D.3d 952, 824 N.Y.S.2d 810; People v. Sinclair, 23 A.D.3d 537, 806 N.Y.S.2d 609). In addition, there is no merit to the contention that the defendant was entitled to a downward departure to risk level two ( see People v. Mingo, 12 N.Y.3d 563, 883 N.Y.S.2d 154, 910 N.E.2d 983; People v. Wyatt, 89 A.D.3d 112, 931 N.Y.S.2d 85; People v. Mabee, 69 A.D.3d 820, 893 N.Y.S.2d 585). SKELOS, J.P., BALKIN, LEVENTHAL and SGROI, JJ., concur.