| People v Barfield |
| 2014 NY Slip Op 01731 [115 AD3d 835] |
| March 19, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Harry Barfield, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano andRona I. Kugler of counsel; Jennifer J. Hickey on the brief), for respondent.
Appeal by the defendant from an order of the Supreme Court, Queens County(Lasak, J.), dated August 4, 2009, which, after a hearing to redetermine his sex offenderrisk level pursuant to the stipulation of settlement in Doe v Pataki (3 F Supp 2d456 [SD NY 1998]), 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 hadpreviously been convicted of a felony sex crime. Therefore, he was presumptively a levelthree sex offender pursuant to an automatic override addressing prior felony convictionsfor sex crimes, irrespective of the points scored on the risk assessment instrument(see Sex Offender Registration Act: Risk Assessment Guidelines andCommentary at 3-4 [2006]; People v Manson, 111 AD3d 688 [2013]; People v Henry, 107 AD3d678, 679 [2013]; People vPalmer, 91 AD3d 618 [2012]). In light of our determination that an overridewas established, we need not reach the defendant's challenge to the assessment of pointsunder risk factors 7 and 14 (see People v Manson, 111 AD3d at 688; People v Spencer, 104 AD3d660, 661 [2013]).
To the extent that the defendant identified, as a matter of law, an appropriatemitigating factor and established facts in support of its existence that might warrant adownward departure from his presumptive risk level designation (see People v Madison, 98AD3d 573, 574 [2012]; People v Wyatt, 89 AD3d 112, 128 [2011]; People v Abdullah, 31 AD3d515 [2006]), upon examining all of the circumstances relevant to the defendant's riskof reoffense and danger to the community, the Supreme Court did not improvidentlyexercise its discretion in denying the defendant's application for a downward departure(see People v Manson, 111 AD3d at 688; People v Eaton, 105 AD3d 722, 723 [2013]; People vMadison, 98 AD3d at 574-575). Dillon, J.P., Hall, Austin and Sgroi, JJ., concur.