| People v Iliff |
| 2015 NY Slip Op 07634 [132 AD3d 831] |
| October 21, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Cary Iliff, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (A. Alexander Donn of counsel), forappellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, Laura T. Ross, and Nicole J. A. Reid of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Queens County(Koenderman, J.), dated October 21, 2013, which, after a hearing, designated him a levelthree sex offender pursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
The Supreme Court's designation of the defendant as a level three sex offender underthe Sex Offender Registration Act (hereinafter SORA) was supported by clear andconvincing evidence (see Correction Law art 6-C; People v Ologbonjaiye, 109AD3d 804, 804 [2013]).
The defendant contends only that the Supreme Court improvidently exercised itsdiscretion in declining to downwardly depart from the presumptive risk level to find hima level two sex offender. The defendant proved by a preponderance of the evidence thatthere was a mitigating factor not taken into account in the SORA Risk AssessmentGuidelines and Commentary (see People v Gillotti, 23 NY3d 841, 861 [2014]), namely,that his health is significantly impaired and that he may present a diminished risk ofreoffense (see SORA: Risk Assessment Guidelines and Commentary at 5 [2006];cf. People v Stevens, 55AD3d 892, 894 [2008]). The Supreme Court, however, after evaluating all of therelevant circumstances, concluded that, even with impaired health, the defendantcontinued to present a high risk of reoffense. The defendant's point assessment total was155, well beyond the threshold for a level three offender. Moreover, independent of thepoint assessment, based on the defendant's prior felony sex conviction in Connecticut, hewas a presumptive level three sex offender pursuant to an automatic override (see People v Barfield, 115AD3d 835, 835 [2014]). Furthermore, as the Supreme Court pointed out, thedefendant committed the underlying sex offense in this case after he had already begun tosuffer significant health problems. In light of all of the circumstances of the case,including, among others, the underlying facts of the crime, the defendant's history, andhis refusal to undergo treatment, we conclude that the Supreme Court did notimprovidently exercise its discretion in denying the defendant's application for adownward departure to a level two sex offender (see People v Barfield, 115AD3d at 835; People vManson, 111 AD3d 688, 689 [2013]). Rivera, J.P., Balkin, Leventhal andDickerson, JJ., concur.