People v Imbert

People v Imbert 2008 NY Slip Op 01431 [48 AD3d 297] February 19, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 16, 2008

The People of the State of New York, Respondent,
v
Edgar Imbert, Appellant.

—[*1] Steven Banks, The Legal Aid Society, New York City (Steven J. Miraglia of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Dennis Rambaud of counsel), for respondent.

Order, Supreme Court, New York County (William A. Wetzel, J.), entered on or about November 15, 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, by clear and convincing evidence, risk factors bearing a sufficient total point score to support a level three sex offender adjudication. Since the victim's grand jury testimony, standing alone, clearly established that defendant used a dangerous instrument during the rape, the court properly assessed points under the corresponding risk factor (see Correction Law § 168-n [3]; People v Quintana, 29 AD3d 308 [2006], lv denied 7 NY3d 709 [2006]). The court also properly assessed points under the risk factor for drug abuse, based on the case summary and presentence reports (see People v Ramos, 41 AD3d 1250 [2007], lv denied 9 NY3d 809 [2007]), and defendant's claim of improper double counting is without merit. Defendant did not establish any special circumstances warranting a downward departure from his presumptive risk level (see People v Guaman, 8 AD3d 545 [2004]). Concur—Tom, J.P., Nardelli, Williams and McGuire, JJ.