People v. Winney

Appeal from an order of the County Court of Schenectady County (Giardino, J.), entered November 21, 2006, which classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act.

In 1991, defendant was convicted of rape in the first degree (two counts) and sodomy in the first degree (two counts) and was sentenced to 12V2 to 25 years in prison. In anticipation of defendant’s conditional release, County Court conducted a hearing to determine his risk level status in accordance with the Sex Offender Registration Act (see Correction Law art 6-C). Based upon the existence of an override factor, namely, defendant’s 1977 conviction for sexual abuse in the first degree, the court classified him as a risk level III sex offender. Defendant now appeals.

We affirm. Defendant’s prior felony conviction for a sex crime constituted an applicable override factor resulting in a presumptive risk level III assessment (see People v Oginski, 35 AD3d 952 , 953 [2006]; People v Sacco, 17 AD3d 711 , 712 [2005]). On this record, we cannot conclude that County Court abused its discretion in classifying defendant as a risk level III sex offender (see People v Mabb, 32 AD3d 1135 , 1135 [2006]). Defendant’s remaining claims have been examined and found to be unavailing.