People v. Martinez

39 A.D.3d 835, 832 N.Y.S.2d 807

Opinion

Appeal by the defendant from an order of the Supreme Court, Kings County (Marrero, J.), dated February 28, 2005, which, after a hearing to redetermine the defendant’s sex offender risk level pursuant to the stipulation of settlement in Doe v Pataki (3 F Supp 2d 456 [1998]), designated him a level two sex offender pursuant to Correction Law article 6-C.

Ordered that the order is affirmed, without costs or disbursements.

Contrary to the defendant’s contention on appeal, the People proved by clear and convincing evidence that he was armed with a dangerous instrument (a knife) during the commission of the underlying crime (see People v Overman, 7 AD3d 596 [2004]; People v Burgess, 6 AD3d 686 [2004]; People v Oquendo, 1 AD3d 421 [2003]). Thus, the defendant was properly assessed points in the risk assessment instrument for such conduct, making him a presumptive level two sex offender. Further, the defendant failed to present clear and convincing evidence of the existence of special circumstances warranting a downward departure from his presumptive risk level (see People v Williams, 34 AD3d 662 [2006]; People v Guaman, 8 AD3d 545 [2004]). Thus, the defendant was properly adjudicated a level two sex offender. Miller, J.E, Ritter, Covello and McCarthy, JJ., concur.