People v. Marks

Appellate Division of the Supreme Court of New York

People v. Marks

31 A.D.3d 1142, 817 N.Y.S.2d 555

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

DecidedJuly 7, 2006

StatusPublished

Cited by25 cases

This text of 31 A.D.3d 1142 (People v. Marks) 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. Marks, 31 A.D.3d 1142, 817 N.Y.S.2d 555 (N.Y. Ct. App. 2006).

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Opinion

Appeal from an order of the Genesee County Court (Eric R. [1143]*1143Adams, J.), dated February 23, 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: We reject the contention of defendant that County Court erred in determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.). The court properly assessed 15 points for defendant’s history of alcohol abuse (see People v Vaughn, 26 AD3d 776 [2006]; People v Moore, 16 AD3d 190 [2005], lv denied 4 NY3d 889 [2005]; People v King, 15 AD3d 693 [2005]), and defendant thus had a score that was 10 points in excess of that necessary to render him a level three risk. In addition, the court properly agreed with the People with respect to the existence of an “ ‘override’ factor,” i.e., defendant’s prior conviction of a sex crime (People v Boan, 11 AD3d 956, 956 [2004], lv denied 4 NY3d 702 [2004]), and we therefore conclude that the People met their “burden of proving the facts supporting the risk level classification sought by clear and convincing evidence” (People v Dort, 18 AD3d 23, 24 [2005], lv denied 4 NY3d 885 [2005]; see Correction Law § 168-n [3]; People v McDaniel, 27 AD3d 1158 [2006]; People v Hamelinck, 23 AD3d 1060 [2005]). Contrary to his further contention, defendant failed to establish his entitlement to a downward departure from the presumptive risk level inasmuch as he failed to present the requisite clear and convincing evidence of the existence of special circumstances warranting a downward departure (see McDaniel, 27 AD3d 1158 [2006]; Hamelinck, 23 AD3d 1060 [2005]; People v Douglas, 18 AD3d 967, 968 [2005], lv denied 5 NY3d 710 [2005]). Present—Kehoe, J.P., Gorski, Martoche, Smith and Pine, JJ

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Appeal from an order of the Genesee County Court (Eric R. [1143]*1143Adams, J.), dated February 23, 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: We reject the contention of defendant that County Court erred in determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.). The court properly assessed 15 points for defendant’s history of alcohol abuse (see People v Vaughn, 26 AD3d 776 [2006]; People v Moore, 16 AD3d 190 [2005], lv denied 4 NY3d 889 [2005]; People v King, 15 AD3d 693 [2005]), and defendant thus had a score that was 10 points in excess of that necessary to render him a level three risk. In addition, the court properly agreed with the People with respect to the existence of an “ ‘override’ factor,” i.e., defendant’s prior conviction of a sex crime (People v Boan, 11 AD3d 956, 956 [2004], lv denied 4 NY3d 702 [2004]), and we therefore conclude that the People met their “burden of proving the facts supporting the risk level classification sought by clear and convincing evidence” (People v Dort, 18 AD3d 23, 24 [2005], lv denied 4 NY3d 885 [2005]; see Correction Law § 168-n [3]; People v McDaniel, 27 AD3d 1158 [2006]; People v Hamelinck, 23 AD3d 1060 [2005]). Contrary to his further contention, defendant failed to establish his entitlement to a downward departure from the presumptive risk level inasmuch as he failed to present the requisite clear and convincing evidence of the existence of special circumstances warranting a downward departure (see McDaniel, 27 AD3d 1158 [2006]; Hamelinck, 23 AD3d 1060 [2005]; People v Douglas, 18 AD3d 967, 968 [2005], lv denied 5 NY3d 710 [2005]). Present—Kehoe, J.P., Gorski, Martoche, Smith and Pine, JJ

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31 A.D.3d 1142, 817 N.Y.S.2d 555, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-marks-nyappdiv-2006.

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