| People v Palmer |
| 2012 NY Slip Op 00193 [91 AD3d 618] |
| Jnury 10, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Bobby Palmer, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael J. Brennan of counsel), forrespondent.
Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), datedMarch 23, 2010, which, after a hearing, designated him a level three sexually violent offenderpursuant to Correction Law 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 previouslybeen convicted of a felony sex crime. Therefore, he was presumptively a level three sexuallyviolent offender pursuant to an automatic override addressing prior felony convictions for sexcrimes, irrespective of the points scored on the risk assessment instrument (see SexOffender Registration Act: Risk Assessment Guidelines and Commentary, at 3-4 [2006]; People v Carter, 85 AD3d 995[2011]; People v Guitard, 57 AD3d751, 752 [2008]). In any event, contrary to the defendant's contention, he was properlyassessed 15 points in the risk assessment instrument under the risk factor for history of drug oralcohol abuse, in light of his criminal history and the information contained in the presentenceinvestigation report and case summary (see People v Abrams, 76 AD3d 1058 [2010]).
Furthermore, the County Court properly determined that the defendant was not entitled to adownward departure from his presumptive risk level assessment (see People v Abreu, 89 AD3d 711[2011]; People v Livingston, 87AD3d 628 [2011]). Accordingly, the defendant was properly designated a level threesexually violent offender. Mastro, A.P.J., Florio, Balkin and Chambers, JJ., concur.