People v. Imbert

48 A.D.3d 297, 850 N.Y.S.2d 899

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 19, 2008
• Status: Published

Opinion

Order, Supreme Court, New York County (William A. Wetzel, J.), entered on or about November 15, 2005, which adjudicated defendant a level three sex offender under the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The People met their burden of establishing, by clear and convincing evidence, risk factors bearing a sufficient total point score to support a level three sex offender adjudication. Since the victim’s grand jury testimony, standing alone, clearly established that defendant used a dangerous instrument during the rape, the court properly assessed points under the corresponding risk factor (see Correction Law § 168-n [3]; People v Quintana, 29 AD3d 308 [2006], lv denied 7 NY3d 709 [2006]). The court also properly assessed points under the risk factor for drug abuse, based on the case summary and presentence reports (see People v Ramos, 41 AD3d 1250 [2007], lv denied 9 NY3d 809 [2007]), and defendant’s claim of improper double counting is without merit. Defendant did not establish any special circumstances warranting a downward departure from his presumptive risk level (see People v Guaman, 8 AD3d 545 [2004]). Concur&emdash;Tom, J.P., Nardelli, Williams and McGuire, JJ.