Opinion
2019–12109
05-11-2022
PEOPLE of State of New York, respondent, v. Michael CERASARO, appellant.
Kelley M. Enderley, Poughkeepsie, NY, for appellant. William V. Grady, District Attorney, Poughkeepsie, NY (Anna K. Diehn of counsel), for respondent.
Kelley M. Enderley, Poughkeepsie, NY, for appellant.
William V. Grady, District Attorney, Poughkeepsie, NY (Anna K. Diehn of counsel), for respondent.
MARK C. DILLON, J.P., COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
Appeal by the defendant from an order of the County Court, Dutchess County (Edward T. McLoughlin, J.), dated September 24, 2019, 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 Sex Offender Registration Act: Risk Assessment Guidelines and Commentary (2006) promulgated by the Board of Examiners of Sex Offenders contain four overrides that automatically result in a presumptive risk assessment of level three (see People v. Champagne, 140 A.D.3d 719, 719, 31 N.Y.S.3d 218 ). "The People bear the burden of proving the applicability of a particular override by clear and convincing evidence" ( People v. Lobello, 123 A.D.3d 993, 994, 999 N.Y.S.2d 179 ; see Correction Law § 168–n[3] ).
Here, the People established by clear and convincing evidence that an automatic override resulting in a presumptive risk assessment of level three for the defendant was warranted based on the defendant's prior felony sex offense conviction in May 2007 (see People v. Fessel , 149 A.D.3d 1113, 1114, 50 N.Y.S.3d 885 ; People v. Champagne , 140 A.D.3d at 720, 31 N.Y.S.3d 218 ).
Although a court may nevertheless depart from the presumptive risk level "where the circumstances warrant such a departure" ( People v. Johnson, 135 A.D.3d 720, 721, 22 N.Y.S.3d 238 ), here the defendant failed to assert any mitigating circumstances (see e.g. People v. Champagne, 140 A.D.3d at 720, 31 N.Y.S.3d 218 ).
Accordingly, the County Court correctly designated the defendant a level three sex offender.
DILLON, J.P., DUFFY, CONNOLLY and CHRISTOPHER, JJ., concur.