People v Schiavoni

People v Schiavoni 2013 NY Slip Op 04317 Decided on June 12, 2013 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 June 12, 2013
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
RUTH C. BALKIN, J.P.
JOHN M. LEVENTHAL
SANDRA L. SGROI
ROBERT J. MILLER, JJ.
2012-02882

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

v

Frank Schiavoni, appellant. Robert C. Mitchell, Riverhead, N.Y. (James H. Miller III of counsel), for appellant.




Thomas J. Spota, District Attorney, Riverhead, N.Y. (Thomas C.
Costello of counsel), for respondent.


DECISION & ORDER

Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), dated March 13, 2012, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.

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

The Risk Assessment Guidelines and Commentary promulgated by the Board of Examiners of Sex Offenders "contain four overrides' that automatically result in a presumptive risk assessment of level 3" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 3 [2006]). The People bear the burden of proving the applicability of a particular override by clear and convincing evidence (see Correction Law § 168-n[3]; People v Martin, 79 AD3d 717, 717-718). Contrary to the defendant's contention, the People established by clear and convincing evidence the applicability of the fourth override, namely, that there has been "a clinical assessment that the offender has a psychological . . . abnormality that decreases his ability to control impulsive sexual behavior" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]; see Board of Examiners of Sex Offenders, Scoring of Child Pornography Cases Position Statement [June 1, 2012]; People v Martin, 79 AD3d at 718; People v Lorio, 37 AD3d 796). Accordingly, the County Court properly designated the defendant a level three sex offender.
BALKIN, J.P., LEVENTHAL, SGROI and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court