| People v Fareira |
| 2011 NY Slip Op 00205 [80 AD3d 589] |
| January 11, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v RobertFareira, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy ofcounsel; Leah Rabinowitz on the brief), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Sullivan, J.), datedApril 29, 2009, which, after a hearing, designated him a level three sex offender pursuant to CorrectionLaw article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
The People established, by clear and convincing evidence, that the defendant had been previouslyconvicted of two felony sex crimes. Therefore, he was presumptively a level three sex offender pursuantto the Sex Offender Registration Act by application of "automatic override number one" in his RiskAssessment Instrument, which override addresses a prior felony conviction for a sex crime (seeCorrection Law art 6-C; see generallyPeople v King, 74 AD3d 1162 [2010]). The party seeking a downward departure from thepresumptive risk level has the burden of establishing by clear and convincing evidence that there aremitigating factors "of a kind, or to a degree, that [are] otherwise not adequately taken into account" bythe guidelines (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4[2006]; see People v King, 74 AD3d1162 [2010]; People v Pietarniello,53 AD3d 475, 478 [2008]; People vSam, 67 AD3d 876, 876-877 [2009]). Here, the defendant did not submit any evidence toshow the existence of such mitigating factors. Accordingly, the Supreme Court properly designated thedefendant a level three sex offender.
The defendant's remaining contentions are unpreserved for appellate review. Prudenti, P.J.,Angiolillo, Florio and Sgroi, JJ., concur.