| People v Leeks |
| 2007 NY Slip Op 07037 [43 AD3d 1251] |
| September 27, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Joseph D.Leeks, Appellant. |
—[*1] Gwen P. Wilkinson, District Attorney, Ithaca (Micah Kwasnik of counsel), forappellant.
Carpinello, J. Appeal from an order of the County Court of Tompkins County (Sherman, J.),rendered February 16, 2006, which classified defendant as a risk level three sex offenderpursuant to the Sex Offender Registration Act.
Defendant was convicted in Florida of various sex crimes involving two different victims. Hewas incarcerated for five years, served a period of probation and then moved to New York wherehe registered as a sex offender. The Board of Examiners of Sex Offenders prepared a riskassessment instrument assigning defendant points based upon the characteristics of his crimesand recommending that he be classified as a risk level three sex offender under the Sex OffenderRegistration Act (see Correction Law art 6-C [hereinafter SORA]) due to hisaccumulation of a total of 140 points. Following a hearing, County Court agreed and rendered anorder classifying him as such. Defendant now appeals.
Defendant asserts that County Court erroneously adopted the risk assessment instrument'sassignment of 20 points in risk factor 6 and 15 points in risk factor 14 in reaching a total of 140points for purposes of classifying him as a risk level three sex offender. Risk factor 6 providesthat 20 points shall be assigned if the "[v]ictim suffered from a mental disability, mentalincapacity or physical helplessness." Significantly, defendant admitted that he [*2]had sexual contact with a 15-year-old inpatient of a mental healthfacility where he worked as a patient supervisor. Contrary to his claim, we do not find that thelack of proof regarding the precise nature of her affliction negates this factor. Risk factor 14provides that 15 points shall be assigned if the defendant has been released from incarcerationwithout supervision. Inasmuch as it is undisputed that defendant was no longer under probationsupervision at the time that he moved to New York, the imposition of 15 points attributable tothis factor was also appropriate. In sum, based upon our review of the record, we find thatCounty Court's risk assessment and classification of defendant as a risk level three sex offender issupported by clear and convincing evidence (see People v Walker, 15 AD3d 692, 692 [2005]). We further findthat a downward departure from the presumptive risk level established by the risk assessmentinstrument is not warranted under the circumstances presented insofar as there are no mitigatingfactors not sufficiently accounted for by the risk assessment instrument (see People v Scott, 35 AD3d 1015,1016 [2006], lv denied 8 NY3d 808 [2007]).
Cardona, P.J., Mercure, Peters and Spain, JJ., concur. Ordered that the order is affirmed,without costs.