People v. Lorio

37 A.D.3d 796, 829 N.Y.S.2d 920

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 27, 2007
• Status: Published

Opinion

Appeal by the defendant from an order of the Supreme Court, Nassau County (Calabrese, J.), entered June 23, 2006, 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 County Court designated the defendant a level three sex offender based upon the existence of an overriding factor, namely, “a clinical assessment that the [defendant] has a psychological, physical, or organic abnormality that decreases his ability to control impulsive sexual behavior” (Sex Offender Registration Act: Risk Assessment Guidelines & Commentary, at 3 [1997 ed]; see generally People v Scott, 288 AD2d 763 [2001]). Contrary to the defendant’s contention, the court’s determination was supported by clear and convincing evidence and, therefore, should not be disturbed (see Correction Law § 168-n [3]; People v Davis, 26 AD3d 364 [2006]; People v Hegazy, 25 AD3d 675, 676 [2006]; People v Hines, 24 AD3d 524 [2005]). The defendant failed to present clear and convincing evidence of special circumstances warranting a downward departure from the presumptive risk level (see People v Davis, supra; People v Ventura, 24 AD3d 527 [2005]; People v Guaman, 8 AD3d 545 [2004]). Prudenti, P.J., Krausman, Dillon and McCarthy, JJ., concur.