People v. Malerba

— Appeal by the de *1007 fendant from an order of the Supreme Court, Kings County (Harrington, J.), dated April 29, 2014, 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. The defendant was presumptively a level three sex offender pursuant to an automatic override based upon the fact that he murdered the victim during the course of his sexual assault (see People v Malerba, 108 AD2d 759 [1985]; People v Abreu, 89 AD3d 711 [2011]). The Supreme Court properly determined that the defendant was not entitled to a downward departure from his presumptive risk level (see People v Grubbs, 107 AD3d 771 [2013]; People v Bussie, 83 AD3d 920, 921 [2011]). Mastro, J.P., Chambers, Miller and Hinds-Radix, JJ., concur.