People v. Fareira

Appeal by the defendant from an order of the Supreme Court, Kings County (Sullivan, J), dated April 29, 2009, 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 People established, by clear and convincing evidence, that the defendant had been previously convicted of two felony sex crimes. Therefore, he was presumptively a level three sex offender pursuant to the Sex Offender Registration Act by application of “automatic override number one” in his Risk Assessment Instrument, which override addresses a prior felony conviction for a sex crime (see Correction Law art 6-C; see gen 590 erally People v King, 74 AD3d 1162 [2010]). The party seeking a downward departure from the presumptive risk level has the burden of establishing by clear and convincing evidence that there are mitigating factors “of a kind, or to a degree, that [are] otherwise not adequately taken into account” by the guidelines (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [2006]; see People v King, 74 AD3d 1162 [2010]; People v Pietarniello, 53 AD3d 475, 478 [2008]; People v Sam, 67 AD3d 876, 876-877 [2009]). Here, the defendant did not submit any evidence to show the existence of such mitigating factors. Accordingly, the Supreme Court properly designated the defendant a level three sex offender. The defendant’s remaining contentions are unpreserved for appellate review. Prudenti, P.J., Angiolillo, Florio and Sgroi, JJ., concur.