People v. Fessel , 149 A.D.3d 1113 ( 2017 )

People v Fessel (2017 NY Slip Op 03204)

People v Fessel

2017 NY Slip Op 03204

Decided on April 26, 2017

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 April 26, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
JOHN M. LEVENTHAL, J.P.
JEFFREY A. COHEN
HECTOR D. LASALLE
BETSY BARROS, JJ.

2015-07624

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

v

Andy Fessel, appellant.

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

Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Joyce Adolfsen, and Daniel Berman of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Foley, J.), dated July 30, 2015, 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 Sex Offender Registration Act: Risk Assessment Guidelines and Commentary (2006) (hereinafter Guidelines) contain four overrides that automatically result in a presumptive risk assessment of level three (see Guidelines at 3-4; People v Champagne, 140 AD3d 719, 719). "The People bear the burden of proving the applicability of a particular override by clear and convincing evidence" (People v Lobello, 123 AD3d 993, 994; see Correction Law § 168-n[3]). In this case, the People proved by clear and convincing evidence the applicability of the first override based on the defendant's prior felony sex offense conviction (see People v Champagne, 140 AD3d at 720). "[O]nce the People have sustained their burden of proving the applicability of an override, a SORA court is not possessed of any discretion in determining whether to apply [an] override; the application of the override is automatic'" (People v Broadus, 142 AD3d 595, 595-596, quoting People v Gordon, 133 AD3d 835, 836).

Although a court may depart from the presumptive risk level where the circumstances warrant that departure (see People v Broadus, 142 AD3d at 596), here, the Supreme Court properly denied the defendant's application for a downward departure (see People v Calle-Calle, 145 AD3d 804; People v Vizcarra, 138 AD3d 815, 816; People v Sadler, 124 AD3d 613, 613-614).

Accordingly, the Supreme Court correctly designated the defendant a level three sex offender.

LEVENTHAL, J.P., COHEN, LASALLE and BARROS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court