People v. Berry , 28 N.Y.S.3d 631 ( 2016 )

People v Berry (2016 NY Slip Op 02976)

People v Berry

2016 NY Slip Op 02976

Decided on April 20, 2016

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 20, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
CHERYL E. CHAMBERS, J.P.
LEONARD B. AUSTIN
SHERI S. ROMAN
COLLEEN D. DUFFY, JJ.

2013-01935

[*1]People of State of New York, respondent,

v

Jameek Berry, appellant.

Kent V. Moston, Hempstead, NY (Jeremy L. Goldberg and Argun M. Ulgen of counsel), for appellant.

Madeline Singas, District Attorney, Mineola, NY (Ilisa T. Fleischer and Pamela Kelly-Pincus of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from an order of the County Court, Nassau County (Delligatti, J.), dated January 28, 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.

Contrary to the defendant's contention, the County Court properly determined that he was a presumptive level three sex offender pursuant to the Sex Offender Registration Act (see Correction Law art 6-C). The People established, by clear and convincing evidence, that the defendant previously had been convicted of a felony sex offense. Therefore, irrespective of the points scored on the risk assessment instrument, the defendant was a presumptive level three sex offender pursuant to an automatic override (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 3-4 [2006]; People v Gordon, 133 AD3d 835, 836; People v Barfield, 115 AD3d 835, 835; People v Roache, 110 AD3d 776, 777). In light of our determination that an override was established, we need not reach the defendant's challenge to the assessment of points under specified risk factors (see People v Barfield, 115 AD3d at 835; People v Manson, 111 AD3d 688, 688).

Moreover, the County Court providently exercised its discretion in denying the defendant's application for a downward departure from his presumptive risk level designation (see People v Iliff, 132 AD3d 831, 831-832; People v Barfield, 115 AD3d at 835; People v Manson, 111 AD3d at 689). Upon examining all of the circumstances relevant to the defendant's risk to reoffend and the danger the defendant poses to the community, a downward departure was not warranted (see People v Iliff, 132 AD3d at 831-832; People v Barfield, 115 AD3d at 835; People v Manson, 111 AD3d at 689).

The defendant's remaining contentions are without merit.

CHAMBERS, J.P., AUSTIN, ROMAN and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court