People v O'Neal

People v O'Neal 2006 NY Slip Op 10117 [35 AD3d 302] December 28, 2006 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 14, 2007

The People of the State of New York, Respondent,
v
John O'Neal, Appellant.

—[*1]

Order, Supreme Court, New York County (Richard D. Carruthers, J.), entered on or about April 22, 2005, which adjudicated defendant a level three offender under the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The People met their burden of establishing, by clear and convincing evidence, risk factors bearing a sufficient total point score to support a level three sex offender adjudication. Since the grand jury testimony supported a reasonable inference that the victim and defendant did not know each other, the court properly assessed those points that are applicable under the relationship-with-victim risk factor where a defendant and victim are strangers. Defendant's claim of improper double counting with respect to certain other risk factors is unpreserved and without merit. To the extent that defendant is arguing that the court should have granted him a discretionary downward departure, that claim is also without merit. We have considered and rejected defendant's constitutional challenge 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—Buckley, P.J., Andrias, Saxe, Gonzalez and McGuire, JJ.