Opinion
2014-03-19
PEOPLE of State of New York, respondent, v. Harry BARFIELD, appellant.
Lynn W.L. Fahey, New York, N.Y. (Kendra L. Hutchinson of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Rona I. Kugler of counsel; Jennifer J. Hickey on the brief), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Kendra L. Hutchinson of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Rona I. Kugler of counsel; Jennifer J. Hickey on the brief), for respondent.
Appeal by the defendant from an order of the Supreme Court, Queens County (Lasak, J.), dated August 4, 2009, which, after a hearing to redetermine his sex offender risk level pursuant to the stipulation of settlement in Doe v. Pataki, 3 F.Supp.2d 456 [S.D.N.Y.], 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 established by clear and convincing evidence that the defendant had previously been convicted of a felony sex crime. Therefore, he was presumptively a level three sex offender pursuant to an automatic override addressing prior felony convictions for sex crimes, irrespective of the points scored on the risk assessment instrument ( see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 3–4 [2006]; People v. Manson, 111 A.D.3d 688, 974 N.Y.S.2d 792;People v. Henry, 107 A.D.3d 678, 679, 966 N.Y.S.2d 499;People v. Palmer, 91 A.D.3d 618, 935 N.Y.S.2d 894). In light of our determination that an override was established, we need not reach the defendant's challenge to the assessment of points under risk factors 7 and 14 ( see People v. Manson, 111 A.D.3d at 688, 974 N.Y.S.2d 792;People v. Spencer, 104 A.D.3d 660, 661, 960 N.Y.S.2d 322).
To the extent that the defendant identified, as a matter of law, an appropriate mitigating factor and established facts in support of its existence that might warrant a downward departure from his presumptive risk level designation ( see People v. Madison, 98 A.D.3d 573, 574, 949 N.Y.S.2d 701;People v. Wyatt, 89 A.D.3d 112, 128, 931 N.Y.S.2d 85;People v. Abdullah, 31 A.D.3d 515, 818 N.Y.S.2d 267), upon examining all of the circumstances relevant to the defendant's risk of reoffense and danger to the community, the Supreme Court did not improvidently exercise its discretion in denying the defendant's application for a downward departure ( see People v. Manson, 111 A.D.3d at 688, 974 N.Y.S.2d 792;People v. Eaton, 105 A.D.3d 722, 723, 963 N.Y.S.2d 271;People v. Madison, 98 A.D.3d at 574–575, 949 N.Y.S.2d 701). DILLON, J.P., HALL, AUSTIN and SGROI, JJ., concur.