People v Barnes

People v Barnes 2006 NY Slip Op 08397 [34 AD3d 1227] November 17, 2006 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 17, 2007

The People of the State of New York, Respondent, v Allan Barnes, Appellant.

—[*1]

Appeal from an order of the Supreme Court, Monroe County (Kenneth R. Fisher, J.), dated November 24, 2004. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Defendant appeals from an order determining that he is a level three risk under the Sex Offender Registration Act (Correction Law § 168 et seq.). The total risk factor score on the risk assessment instrument (RAI) prepared by the Board of Examiners of Sex Offenders (Board) resulted in the presumptive classification of defendant as a level three risk. Following a redetermination hearing, Supreme Court eliminated points that had been assessed by the Board, resulting in the presumptive classification of defendant as a level two risk based upon his recalculated total risk factor score on the RAI. The court determined, however, that defendant is nevertheless a level three risk based upon the presumptive override for the infliction of serious physical injury (see People v Brown, 302 AD2d 919, 920-921 [2003]). Contrary to defendant's contention, "the court's determination of defendant's risk level was properly based on clear and convincing evidence related to the statutory factors" (id. at 921). Clear and convincing evidence also supports the court's alternative determination that the recalculated total risk factor score did not adequately take into account defendant's criminal record or lack of success during periods of supervised release, and thus that an upward departure from the presumptive risk level was warranted on that basis as well (see People v Thomas, 307 AD2d 759, 760 [2003]; see generally Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [Nov. 1997]). We have considered defendant's remaining contentions and conclude that they lack merit. Present—Gorski, J.P., Smith, Centra and Green, JJ.