People v. Ferrara

38 A.D.3d 1302, 832 N.Y.S.2d 365

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 16, 2007
• Status: Published

Opinion

Appeal from an order of the Wyoming County Court (Mark H. Dadd, J.), entered March 29, 2005. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum:

Defendant appeals from an order determining that he is a level three risk under the Sex Offender Registration Act (Correction Law § 168 et seq.). Although defendant is correct that the People failed to present clear and convincing evidence that he refused treatment while confined and that his conduct while confined was unsatisfactory, we conclude that the People presented clear and convincing evidence of the other risk factors for which he was assessed points (see generally Correction Law § 168-n [3]). Even reducing defendant’s score on the risk assessment instrument by the points that were improperly assessed, we conclude that defendant’s score nevertheless remains within the range of a level three risk (see People v Lujan, 34 AD3d 1346, 1347 [2006], lv denied 8 NY3d 805 [2007]; People v McDaniel, 27 AD3d 1158 [2006], lv denied 7 NY3d 703 [2006]). We also note that, although defendant had been released from prison for eight years at the time of the redetermination hearing, he was properly assessed 15 points for being released from prison without supervision (see generally Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 16 [Nov. 1997]). Contrary to the further contention of defendant, he failed to present clear and convincing evidence of special circumstances justifying a downward departure from his presumptive risk level (see People v Mason, 35 AD3d 569 [2006]; People v Marks, 31 AD3d 1142, 1143 [2006], lv denied 7 NY3d 715 [2006]; McDaniel, 27 AD3d at 1159). Finally, County Court did not err in failing to address “ ‘the extent, if any, to which [defendant’s] behavior since his . . . initial registration makes the risk of reoffense more or less likely’ ” (People v Price, 31 AD3d 1114, 1115 [2006]), inasmuch as defendant offered no competent evidence of his behavior since his release from prison. Present— Centra, J.E, Lunn, Peradotto and Pine, JJ.