| People v Spencer |
| 2013 NY Slip Op 01388 [104 AD3d 660] |
| March 6, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v David Spencer, Appellant. |
—[*1]
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 threesex 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 ofExaminers of Sex Offenders "contain four 'overrides' that automatically result in apresumptive risk assessment of level 3" (Sex Offender Registration Act: RiskAssessment Guidelines and Commentary at 3 [2006]). The People bear the burden ofproving the applicability of a particular override by clear and convincing evidence(see Correction Law § 168-n [3]; People v Martin, 79 AD3d 717 [2010]).
Contrary to the defendant's contention, the People established, by clear andconvincing evidence, the applicability of the fourth override, namely, that there has been"a clinical assessment that the offender has a psychological . . . abnormalitythat decreases his ability to control impulsive sexual behavior" (Sex OffenderRegistration Act: Risk Assessment Guidelines and Commentary at 4 [2006]; seePeople v Martin, 79 AD3d at 718; People v Lorio, 37 AD3d 796 [2007]). Accordingly, theCounty Court properly designated the defendant a level three sex offender.
In light of our determination that an override was established, we need not reach thedefendant's challenge to the assessment of points under risk factor 11. Eng, P.J., Rivera,Lott and Miller, JJ., concur.