People v Linton

People v Linton 2012 NY Slip Op 02851 Decided on April 17, 2012 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 17, 2012
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
RUTH C. BALKIN, J.P.
JOHN M. LEVENTHAL
SHERI S. ROMAN
SANDRA L. SGROI, JJ.
2009-10763

[*1]People of State of New York, respondent,

v

Michael Linton, appellant.




Lynn W. L. Fahey, New York, N.Y. (Lisa Napoli and Anna
Pervukhin of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard
Joblove, Morgan J. Dennehy, and
Anthea Bruffee of counsel; Jaclyn
Goodman on the brief), for respondent.


DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Marrus, J.), dated November 17, 2009, which, after a hearing, designated him a level three sex offender and a sexually violent offender pursuant to Correction Law article 6-C.

ORDERED that the order is affirmed, without costs or disbursements.

The Supreme Court did not improvidently exercise its discretion in declining to downwardly depart from the presumptive risk level, since the defendant failed to establish a ground for a downward departure by a preponderance of the evidence (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [2006 ed.]; People v Fernandez, 91 AD3d 737; People v Wyatt, 89 AD3d 112, 129-130, lv denied 18 NY3d 803).

Although a defendant in a SORA proceeding may be entitled to the appointment of an expert upon a court's finding that expert services are necessary (see County Law § 722-c), the Supreme Court here did not err in declining the defendant's request for the appointment of a psychiatrist to assist him in seeking a downward departure. The defendant did not establish that appointment of an expert was necessary. Moreover, the denial of the defendant's request did not violate his right to due process of law (cf. Ross v Moffitt, 417 US 600, 616).
BALKIN, J.P., LEVENTHAL, ROMAN and SGROI, JJ., concur.

ENTER:

Aprilanne Agostino [*2]

Clerk of the Court