People v. Baker

303 A.D.2d 570, 756 N.Y.S.2d 502, 2003 N.Y. App. Div. LEXIS 2726

Opinion

—Appeal by the defendant from an order of the County Court, Westchester County (DiFiore, J.), dated May 7, 2001, which, pursuant to Correction Law article 6-C, designated him a level three sex offender.

Ordered that the order is affirmed, without costs or disbursements.

The defendant’s contention that the County Court erroneously designated him a level three sex offender because the People failed to prove his mental health status by clear and convincing evidence is unpreserved for appellate review (see People v Roland, 292 AD2d 271 [2002]). In any event, the court’s determination was not based solely on the defendant’s mental health status. The court also relied on other aggravating factors in concluding that an upward departure from the defendant’s presumptive risk level was warranted, as recommended by the Board of Examiners of Sex Offenders. Its determination was supported by clear and convincing evidence and should not be disturbed (see People v Hampton, 300 AD2d 641 [2002]; People v Bottisti, 285 AD2d 841 [2001]). Altman, J.P., Krausman, McGinity and Cozier, JJ., concur.