People v. Fessel

Appellate Division of the Supreme Court of New York

People v. Fessel

2017 NY Slip Op 3204, 149 A.D.3d 1113, 50 N.Y.S.3d 885

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 26, 2017

Docket2015-07624

StatusPublished

Cited by4 cases

This text of 2017 NY Slip Op 3204 (People v. Fessel) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Fessel, 2017 NY Slip Op 3204, 149 A.D.3d 1113, 50 N.Y.S.3d 885 (N.Y. Ct. App. 2017).

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Opinion

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 Guide *1114 lines 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 [2016]). “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 [2014]; 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). “[0]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 [2016], quoting People v Gordon, 133 AD3d 835, 836 [2015]).

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 [2016]; People v Vizcarra, 138 AD3d 815, 816 [2016]; People v Sadler, 124 AD3d 613, 613-614 [2015]).

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

Leventhal, J.P., Cohen, LaSalle and Barros, JJ., concur.

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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 Guide *1114 lines 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 [2016]). “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 [2014]; 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). “[0]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 [2016], quoting People v Gordon, 133 AD3d 835, 836 [2015]).

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 [2016]; People v Vizcarra, 138 AD3d 815, 816 [2016]; People v Sadler, 124 AD3d 613, 613-614 [2015]).

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

Leventhal, J.P., Cohen, LaSalle and Barros, JJ., concur.

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Bluebook (online)

2017 NY Slip Op 3204, 149 A.D.3d 1113, 50 N.Y.S.3d 885, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-fessel-nyappdiv-2017.

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