Opinion
2014-05780
06-03-2015
PEOPLE of State of New York, respondent, v. Kevin LONG, appellant.
Robert C. Mitchell, Riverhead, N.Y. (James H. Miller III of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael J. Brennan of counsel), for respondent.
Robert C. Mitchell, Riverhead, N.Y. (James H. Miller III of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael J. Brennan of counsel), for respondent.
REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, CHERYL E. CHAMBERS, and BETSY BARROS, JJ.
Opinion Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), dated May 14, 2014, 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 Risk Assessment Guidelines and Commentary promulgated by the Board of Examiners of Sex Offenders contain four overrides that automatically result in a presumptive risk assessment of level three” (People v. Lobello, 123 A.D.3d 993, 994, 999 N.Y.S.2d 179 ; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 3 [2006]; People v. Schiavoni, 107 A.D.3d 773, 773, 966 N.Y.S.2d 690 ; People v. Martin, 79 A.D.3d 717, 717, 912 N.Y.S.2d 299 ). “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 at 994, 999 N.Y.S.2d 179 ; see Correction Law § 168–n[3] ; People v. Schiavoni, 107 A.D.3d at 773, 966 N.Y.S.2d 690 ; People v. Martin, 79 A.D.3d at 717, 912 N.Y.S.2d 299 ). Contrary to the defendant's contention, the People established by clear and convincing evidence the applicability of the fourth override, namely, that there has been “a clinical assessment that the offender has a psychological, physical, or organic abnormality that decreases his ability to control impulsive sexual behavior” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4). The defendant was diagnosed with pedophilia and, accordingly, an override to a level three designation was appropriate (see People v. Schiavoni, 107 A.D.3d at 773, 966 N.Y.S.2d 690 ; People v. Spencer, 104 A.D.3d 660, 660–661, 960 N.Y.S.2d 322 ; People v. Ledbetter, 82 A.D.3d 858, 858, 918 N.Y.S.2d 358 ; People v. Martin, 79 A.D.3d at 718, 912 N.Y.S.2d 299 ; People v. Hoffman, 62 A.D.3d 976, 976, 880 N.Y.S.2d 122 ).
In any event, even absent the aforementioned override, under the facts of this case, an upward departure to risk level three was warranted based on aggravating factors which the People established by clear and convincing evidence (see People v. Rotunno, 117 A.D.3d 1019, 1019, 986 N.Y.S.2d 344 ; People v. DeJesus, 117 A.D.3d 1017, 1018, 986 N.Y.S.2d 244 ; People v. Willette, 115 A.D.3d 920, 920–921, 982 N.Y.S.2d 173 ). Moreover, contrary to the defendant's contention, the County Court properly denied his request for a downward departure. The factors he asserted in support of his request for a downward departure were not, as a matter of law, appropriate mitigating circumstances since they were adequately taken into account by the risk assessment instrument (see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Wyatt, 89 A.D.3d 112, 123, 931 N.Y.S.2d 85 ).
Accordingly, the defendant was properly designated a level three sex offender.