People v. Iverson

90 A.D.3d 1561, 936 N.Y.2d 408

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 23, 2011
• Status: Published

Opinion

Memorandum:

Defendant appeals from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act ([SORA] Correction Law § 168 et seq.). Defendant was previously classified a level one risk pursuant to SORA, and he contends that the Feople were required to file a petition seeking modification of his risk level pursuant to Correction Law § 168-0 (3). Defendant failed to preserve that contention for our review (see generally People v Windham, 10 NY3d 801 [2008]; People v Charache, 9 NY3d 829, 830 [2007]; People v Daniels, 86 AD3d 921, 922 [2011], lv denied 17 NY3d 715 [2011]) and, in any event, that contention is without merit. Correction Law § 168-o (3) does not require the filing of a petition to modify the classification of a sex offender convicted of a new qualifying sex offense (see § 168-a [2] [a]).

Defendant was assessed 115 points based upon the factors set forth in the risk assessment instrument (RAI), presumptively classifying him as a level three risk (see generally Correction Law § 168-Z [5], [6]). Contrary to the contention of defendant, his prior felony conviction for a sex offense, i.e., rape in the third degree (Penal Law § 130.25 [2]), “ ‘may be used as both an override factor and a basis upon which to add 30 points for risk factor 9 on the [RAI]’ ” (People v Gilbert, 78 AD3d 1584, 1585 [2010], lv denied 16 NY3d 704 [2011]; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 13-14 [2006]). We further conclude that County Court’s alternative application of the presumptive override for a prior sex felony conviction to classify defendant a level three risk was warranted (see Risk Assessment Guidelines and Commentary, at 3-4; People v Ratcliff, 53 AD3d 1110 [2008], lv denied 11 NY3d 708 [2008]).

Defendant failed to preserve for our review his contention that he was entitled to a downward departure from his presumptive risk level on the ground that both the present and prior sex offenses were nonviolent (see Gilbert, 78 AD3d at 1585-1586; Ratcliff, 53 AD3d 1110). In any event, “defendant’s multiple convictions of sexual crimes constitute ‘compelling evidence that [he] poses a serious risk to public safety’ . . . , and thus a downward departure from the presumptive risk level is not warranted” (Gilbert, 78 AD3d at 1586). Present — Smith, J.P, Fahey, Garni, Sconiers and Gorski, JJ.