People v Miller

People v Miller 2007 NY Slip Op 00062 [36 AD3d 428] January 4, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 14, 2007

The People of the State of New York, Respondent,
v
Malik Miller, Appellant.

—[*1] Steven Banks, The Legal Aid Society, New York (Cheryl Williams of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Dana Poole of counsel), for respondent.

Order, Supreme Court, New York County (Ruth Levine Sussman, J.), entered on or about February 8, 2005, which adjudicated defendant a level three sex offender under the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The People met their burden of establishing various risk factors bearing a sufficient total point score to support a level three sex offender adjudication. As to the two particular factors totaling 55 points that defendant challenges on appeal, the court properly assessed points based on facts elicited at the time of defendant's guilty plea in the underlying case, which "shall be deemed established by clear and convincing evidence and shall not be relitigated" (Correction Law § 168-n [3]). The record also supports the court's alternative finding that defendant should be adjudicated a level three sex offender based upon an overriding factor under the applicable guidelines. We reject defendant's challenges to the choice of risk factors made by the Legislature and the Board of Examiners of Sex Offenders (see People v Bligen, 33 AD3d 489 [2006]; People v Joe, 26 AD3d 300 [2006], lv denied 7 NY3d 703 [2006]). Concur—Mazzarelli, J.P., Andrias, Sullivan, Williams and McGuire, JJ.