People v. Sanford

16 A.D.3d 1082, 790 N.Y.S.2d 792, 2005 N.Y. App. Div. LEXIS 2709

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 18, 2005
• Status: Published

Opinion

Appeal from an order of the Supreme Court, Erie County (Russell P Buscaglia, A.J.), entered on October 15, 2002. The order determined that defendant is a level three risk and a sexually violent offender 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: Defendant appeals from an order determining, inter alia, that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.). We conclude that Supreme Court’s determination, adopting the recommendation of the Board of Examiners of Sex Offenders to depart from the presumptively correct classification of defendant as a level two risk, is based upon clear and convincing evidence (see People v Stevens, 4 AD3d 786 [2004], lv denied 2 NY3d 705 [2004]; People v Skellen, 4 AD3d 863 [2004], lv denied 2 NY3d 705 [2004]). Furthermore, the presumptive risk level did not fully take into account the level of violence that defendant used against the victim; that defendant directed his two codefendants to perpetrate sexual acts upon the victim; and that the victim’s young child was in the home at the time the crimes were committed (see Stevens, 4 AD3d at 786-787). Defendant’s remaining contentions are either not preserved for our review or are without merit. Present—Hurlbutt, J.P., Scudder, Kehoe, Pine and Hayes, JJ.