Opinion
04-26-2017
PEOPLE of State of New York, respondent, v. Andy FESSEL, appellant.
Seymour W. James, Jr., New York, N.Y. (Michael C. Taglieri of counsel), for appellant. Eric Gonzalez, Acting District Attorney, Brooklyn, N.Y. (Leonard Joblove, Joyce Adolfsen, and Daniel Berman of counsel), for respondent.
Seymour W. James, Jr., New York, N.Y. (Michael C. Taglieri of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, N.Y. (Leonard Joblove, Joyce Adolfsen, and Daniel Berman of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Foley, J.), dated July 30, 2015, 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) (hereinafter Guidelines) contain four overrides that automatically result in a presumptive risk assessment of level three (see Guidelines at 3–4; 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] ). In this case, the People proved by clear and convincing evidence the applicability of the first override based on the defendant's prior felony sex offense conviction (see People v. Champagne, 140 A.D.3d at 720, 31 N.Y.S.3d 218). "[O]nce the People have sustained their burden of proving the applicability of an override, ‘a SORA court is not possessed of any discretion in determining whether to apply [an] override; the application of the override is automatic’ " (People v. Broadus, 142 A.D.3d 595, 595–596, 36 N.Y.S.3d 601, quoting People v. Gordon, 133 A.D.3d 835, 836, 20 N.Y.S.3d 165 ).
Although a court may depart from the presumptive risk level where the circumstances warrant that departure (see People v. Broadus, 142 A.D.3d at 596, 36 N.Y.S.3d 601), here, the Supreme Court properly denied the defendant's application for a downward departure (see People v. Calle–Calle, 145 A.D.3d 804, 41 N.Y.S.3d 911 ; People v. Vizcarra, 138 A.D.3d 815, 816, 28 N.Y.S.3d 336 ; People v. Sadler, 124 A.D.3d 613, 613–614, 997 N.Y.S.2d 915 ).
Accordingly, the Supreme Court correctly designated the defendant a level three sex offender.
LEVENTHAL, J.P., COHEN, LaSALLE and BARROS, JJ., concur.