People v. Cummings , 19 N.Y.S.3d 772 ( 2015 )

People v Cummings (2015 NY Slip Op 08815)

People v Cummings

2015 NY Slip Op 08815

Decided on December 2, 2015

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 2, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
THOMAS A. DICKERSON
ROBERT J. MILLER
JOSEPH J. MALTESE, JJ.

2012-03101

[*1]People of State of New York, respondent,

v

Anthony Cummings, appellant.

Seymour W. James, Jr., New York, N.Y. (Michael C. Taglieri of counsel), for appellant.

Daniel L. Master, Jr., Acting District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and Anne Grady of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Richmond County (Meyer, J.), dated March 21, 2012, which, after a hearing, designated him a level three sex offender pursuant 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 previously been convicted of a felony sex crime (see People v Goods, 121 AD3d 660; People v Smalls, 120 AD3d 1145; People v Carter, 85 AD3d 995). Therefore, the defendant was presumptively a level three sex offender pursuant to an automatic override addressing prior felony convictions for sex crimes, irrespective of the points scored on the risk assessment instrument (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 3-4 [2006]; People v Barfield, 115 AD3d 835). Further, the Supreme Court properly denied the defendant's application for a downward departure from the presumptive risk level (see People v Gillotti, 23 NY3d 841, 861; People v Wyatt, 89 AD3d 112, 128).

RIVERA, J.P., DICKERSON, MILLER and MALTESE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court