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People v. Delmarle

Appellate Division of the Supreme Court of New York, Fourth Department
Dec 31, 2003
2 A.D.3d 1446 (N.Y. App. Div. 2003)

Opinion

KA 01-02501.

December 31, 2003.

Appeal from an order of Monroe County Court (Connell, J.), entered April 3, 2002, which designated defendant a level three offender under the Sex Offender Registration Act.

EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF COUNSEL), FOR DEFENDANT-APPELLANT.

HOWARD R. RELIN, DISTRICT ATTORNEY, ROCHESTER (WENDY EVANS LEHMANN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

Before: PRESENT: PIGOTT, JR., P.J., GREEN, SCUDDER, GORSKI, AND LAWTON, JJ.


MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Defendant appeals from an order designating him a level three offender under the Sex Offender Registration Act (Correction Law § 168 et seq.). The point total on the risk assessment instrument (RAI) prepared by the Board of Examiners of Sex Offenders (Board) presumptively classified defendant as a level one offender, but the Board recommended an upward departure to level three based upon factors not adequately taken into account by the RAI ( see Matter of O'Brien v. State of New York Div. of Probation Correctional Servs., 263 A.D.2d 804, 805-806, lv denied 94 N.Y.2d 758). County Court, after considering the recommendation of the Board and materials submitted by both parties ( see § 168-n [3]), agreed with the Board that departure from the presumptive risk level classification of the RAI was warranted, and concluded that defendant was properly designated a level three offender because "the risk of repeat offense is high and there exists a threat to the public safety" (§ 168- l [c]; see O'Brien, 263 A.D.2d at 806; People v. Marinconz, 178 Misc.2d 30, 33-34; People v. Salaam, 174 Misc.2d 726, 736). Upon our review of the record, we conclude that the court's determination of defendant's risk level is based on clear and convincing evidence ( see § 168-n [3]; People v. Brown, 302 A.D.2d 919, 920; People v. Scott, 288 A.D.2d 763, 765).


Summaries of

People v. Delmarle

Appellate Division of the Supreme Court of New York, Fourth Department
Dec 31, 2003
2 A.D.3d 1446 (N.Y. App. Div. 2003)
Case details for

People v. Delmarle

Case Details

Full title:PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-RESPONDENT, v. JOHN C…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Dec 31, 2003

Citations

2 A.D.3d 1446 (N.Y. App. Div. 2003)
769 N.Y.S.2d 431

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