Opinion
2013-03-6
PEOPLE of State of New York, respondent, v. David SPENCER, appellant.
Arza Feldman, Uniondale, N.Y. (Steven A. Feldman of counsel), for appellant.
Appeal by the defendant from an order of the County Court, Dutchess County (Hayes, J.), dated January 23, 2009, 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, 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 and Commentary at 4 [2006]; see 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.
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 factor 11.