Opinion
2013-06-12
PEOPLE of State of New York, respondent, v. Frank SCHIAVONI, appellant.
Robert C. Mitchell, Riverhead, N.Y. (James H. Miller III of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Thomas C. Costello 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. (Thomas C. Costello of counsel), for respondent.
Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), dated March 13, 2012, 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 3” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 3 [2006] ). The People bear the burden of proving the applicability of a particular override by clear and convincing evidence ( seeCorrection Law § 168–n[3]; People v. Martin, 79 A.D.3d 717, 717–718, 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 ... abnormality that decreases his ability to control impulsive sexual behavior” (Sex Offender Registration Act: Risk Assessment Guidelines*691and Commentary at 4 [2006]; see Board of Examiners of Sex Offenders, Scoring of Child Pornography Cases Position Statement [June 1, 2012]; People v. Martin, 79 A.D.3d at 718, 912 N.Y.S.2d 299;People v. Lorio, 37 A.D.3d 796, 829 N.Y.S.2d 920). Accordingly, the County Court properly designated the defendant a level three sex offender.