People v. Delmarle

Memorandum: Defendant appeals from an order designating him a level three offender under the Sex Offender Registration Act (Correction Law § 168 et seq.). The point total on the risk assessment instrument (RAI) prepared by the Board of Examiners of Sex Offenders (Board) presumptively classified defendant as a level one offender, but the Board recommended an upward departure to level three based upon factors not adequately taken into account by the RAI (see Matter of O’Brien v State of New York Div. of Probation & Correctional Servs., 263 AD2d 804 , 805-806 [1999], lv denied 94 NY2d 758 [1999]). County Court, after considering the recommendation of the Board and materials submitted by both parties (see Correction Law § 168-n [3]), agreed with the Board that departure from the presumptive risk level classification of the RAI was warranted, and concluded that defendant was properly designated a level three offender because “the risk of repeat offense is high and there exists a threat to the public safety” (§ 168-Z [6] [c]; see O’Brien, 263 AD2d at 806 ; People v Marinconz, 178 Misc 2d 30 , 33-34 [1998]; People v Salaam, 174 Misc 2d 726 , 736 [1997]). Upon our review of the record, we conclude that the court’s determination of defendant’s risk level is based on clear and convincing evidence (see Correction Law § 168-n [3]; People v Brown, 302 AD2d 919 , 920 [2003]; People v Scott, 288 AD2d 763 , 765 [2001]). Present—Pigott, Jr., P.J., Green, Scudder, Gorski and Lawton, JJ.