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People v. Berry

138 A.D.3d 945 Court N.Y. App. Div. Decision date 2016-04-20 English

Judges Chambers, J.P., Austin, Roman and Duffy, JJ., concur.

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p. 945
The People of the State of New York, Respondent, v Jameek Berry, Appellant.
[28 NYS3d 631]

Appeal by the defendant from an order of the County Court, Nassau County (Delligatti, J.), dated January 28, 2013, 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.

Contrary to the defendant’s contention, the County Court

p. 946
properly determined that he was a presumptive level three sex offender pursuant to the Sex Offender Registration Act (see Correction Law art 6-C). The People established, by clear and convincing evidence, that the defendant previously had been convicted of a felony sex offense. Therefore, irrespective of the points scored on the risk assessment instrument, the defendant was a presumptive level three sex offender pursuant to an automatic override (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 3-4 [2006]; People v Gordon, 133 AD3d 835 , 836 [2015]; People v Barfield, 115 AD3d 835 , 835 [2014]; People v Roache, 110 AD3d 776 , 777 [2013]). In light of our determination that an override was established, we need not reach the defendant’s challenge to the assessment of points under specified risk factors (see People v Barfield, 115 AD3d at 835 ; People v Manson, 111 AD3d 688 , 688 [2013]).

Moreover, the County Court providently exercised its discretion in denying the defendant’s application for a downward departure from his presumptive risk level designation (see People v Iliff, 132 AD3d 831 , 831-832 [2015]; People v Barfield, 115 AD3d at 835 ; People v Manson, 111 AD3d at 689 ). Upon examining all of the circumstances relevant to the defendant’s risk to reoffend and the danger the defendant poses to the community, a downward departure was not warranted (see People v Iliff, 132 AD3d at 831-832 ; People v Barfield, 115 AD3d at 835 ; People v Manson, 111 AD3d at 689 ).

The defendant’s remaining contentions are without merit.

Chambers, J.P., Austin, Roman and Duffy, JJ., concur.

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