Opinion
No. 570250/11.
09-22-2014
The PEOPLE of the State of New York, Respondent, v. Gian VERDELLI, Defendant–Appellant.
Opinion
Order (Neil E. Ross, J.), entered June 14, 2011, modified by vacating the determination that defendant is a predicate sex offender and, as modified, affirmed.
The People met their burden of establishing, by clear and convincing evidence, risk factors bearing a sufficient total point score to support a level two sex offender adjudication. Defendant's challenge to the 30–point assessment based upon his prior criminal history is lacking in merit, since he was previously convicted of a misdemeanor sex offense (see People v. Kraeger, 42 AD3d 944 [2007] ; People v. Davis, 38 Misc.3d 127[A], 2012 N.Y. Slip Op 52362[U] [App Term, 1st Dept 2012], lv dismissed 20 NY3d 1093 [2013] ). The court properly exercised its discretion in denying defendant a downward departure from his presumptive risk level (see People v. Guaman, 8 AD3d 545 [2004] ). However, as the People concede, the court erred in classifying defendant as a predicate sex offender.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur.