People v Scott

People v Scott 2006 NY Slip Op 09876 [35 AD3d 1258] December 22, 2006 Appellate Division, Fourth 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 Scott, Appellant.

—[*1]Appeal from an order of the Supreme Court, Monroe County (John J. Brunetti, A.J.), entered February 15, 2005. 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 pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.). The total risk factor score on the risk assessment instrument presumptively places defendant at risk level three and, in addition, defendant's prior felony conviction of a sex crime is an override that presumptively results in the designation of defendant as a level three risk (see generally Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 3-4 [Nov. 1997]). Defendant failed to preserve for our review his contention that Supreme Court improperly shifted the burden of proof to him in its application of those presumptions (see People v Moore, 35 AD3d 1219 [2006]; People v Smith, 17 AD3d 1045 [2005], lv denied 5 NY3d 705 [2005]). In any event, that contention lacks merit. The court's determination of defendant's risk level is based on clear and convincing evidence, and nothing in the record warrants a downward departure from that risk level (see Moore, 35 AD3d 1219, People v Guaman, 8 AD3d 545 [2004]). Present—Gorski, J.P., Martoche, Smith, Green and Pine, JJ.