People v. Richardson , 998 N.Y.S.2d 665 ( 2015 )

People v Richardson (2015 NY Slip Op 00513)

People v Richardson

2015 NY Slip Op 00513

Decided on January 21, 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 January 21, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RUTH C. BALKIN, J.P.
CHERYL E. CHAMBERS
SYLVIA O. HINDS-RADIX
JOSEPH J. MALTESE, JJ.

2014-00534

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

v

Timothy Richardson, appellant.

Mark Diamond, New York, N.Y., for appellant.

Janet DiFiore, District Attorney, White Plains, N.Y. (Hae Jin Liu, Jennifer L. Spencer, and Laurie G. Sapakoff of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Westchester County (Molea, J.), entered December 3, 2013, 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 proved by clear and convincing evidence that the defendant had previously been convicted of a felony sex offense. Accordingly, the Supreme Court properly determined that he was presumptively a level three offender without regard to the number of points assessed 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, 835; People v Manson, 111 AD3d 688, 688; People v Henry, 107 AD3d 678, 679).

The defendant failed to establish by a preponderance of the evidence any circumstance that could have been a basis for a downward departure (see People v Gillotti, 23 NY3d 841, 861, 864; People v Henry, 107 AD3d at 679). Accordingly, the Supreme Court did not have discretion to downwardly depart from the presumptive risk level, and it properly designated the defendant a level three sex offender (see People v Henry, 107 AD3d at 679).

The defendant's remaining contentions either are without merit, are unpreserved for appellate review, or have been rendered academic in light of our determination.

BALKIN, J.P., CHAMBERS, HINDS-RADIX and MALTESE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court