| People v Berry |
| 2016 NY Slip Op 02976 [138 AD3d 945] |
| April 20, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jameek Berry, Appellant. |
Kent V. Moston, Hempstead, NY (Jeremy L. Goldberg and Argun M. Ulgen ofcounsel), for appellant.
Madeline Singas, District Attorney, Mineola, NY (Ilisa T. Fleischer and PamelaKelly-Pincus of counsel), for respondent.
Appeal by the defendant from an order of the County Court, Nassau County(Delligatti, J.), dated January 28, 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.
Contrary to the defendant's contention, the County Court properly determined that hewas a presumptive level three sex offender pursuant to the Sex Offender Registration Act(see Correction Law art 6-C). The People established, by clear and convincingevidence, that the defendant previously had been convicted of a felony sex offense.Therefore, irrespective of the points scored on the risk assessment instrument, thedefendant was a presumptive level three sex offender pursuant to an automatic override(see Sex Offender Registration Act: Risk Assessment Guidelines andCommentary at 3-4 [2006]; People v Gordon, 133 AD3d 835, 836 [2015]; People v Barfield, 115 AD3d835, 835 [2014]; People vRoache, 110 AD3d 776, 777 [2013]). In light of our determination that anoverride was established, we need not reach the defendant's challenge to the assessmentof points under specified risk factors (see People v Barfield, 115 AD3d at 835; People v Manson, 111 AD3d688, 688 [2013]).
Moreover, the County Court providently exercised its discretion in denying thedefendant's application for a downward departure from his presumptive risk leveldesignation (see People vIliff, 132 AD3d 831, 831-832 [2015]; People v Barfield, 115 AD3d at835; People v Manson, 111 AD3d at 689). Upon examining all of thecircumstances relevant to the defendant's risk to reoffend and the danger the defendantposes to the community, a downward departure was not warranted (see People vIliff, 132 AD3d at 831-832; People v Barfield, 115 AD3d at 835; Peoplev Manson, 111 AD3d at 689).
The defendant's remaining contentions are without merit. Chambers, J.P., Austin,Roman and Duffy, JJ., concur.