| People v Berry |
| 2016 NY Slip Op 02976 [138 AD3d 945] |
| April 20, 2016 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| 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 of counsel), for appellant.
Madeline Singas, District Attorney, Mineola, NY (Ilisa T. Fleischer and Pamela Kelly-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 level three 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 he was 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 convincing evidence, that the defendant previously had been convicted of a felony sex offense. Therefore, irrespective of the points scored on the risk assessment instrument, the defendant was a presumptive level three sex offender pursuant to an automatic override (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 3-4 [2006]; People v Gordon, 133 AD3d 835, 836 [2015]; People v Barfield, 115 AD3d 835, 835 [2014]; People v Roache, 110 AD3d 776, 777 [2013]). In light of our determination that an override was established, we need not reach the defendant's challenge to the assessment of points under specified risk factors (see People v Barfield, 115 AD3d at 835; People v Manson, 111 AD3d 688, 688 [2013]).
Moreover, the County Court providently exercised its discretion in denying the defendant's application for a downward departure from his presumptive risk level designation (see People v Iliff, 132 AD3d 831, 831-832 [2015]; People v Barfield, 115 AD3d at 835; People v Manson, 111 AD3d at 689). Upon examining all of the circumstances relevant to the defendant's risk to reoffend and the danger the defendant poses to the community, a downward departure was not warranted (see People v Iliff, 132 AD3d at 831-832; People v Barfield, 115 AD3d at 835; People v Manson, 111 AD3d at 689).
The defendant's remaining contentions are without merit. Chambers, J.P., Austin, Roman and Duffy, JJ., concur.