People v Steinke (Dennis)

[*1] People v Steinke (Dennis) 2010 NY Slip Op 50133(U) [26 Misc 3d 134(A)] Decided on January 27, 2010 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 27, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., MOLIA and LaCAVA, JJ
2007-1571 N C.

The People of the State of New York, Respondent,

against

Dennis Steinke, Appellant.

Appeal from an order of the District Court of Nassau County, First District (Vito M. DeStefano, J.), entered September 3, 2007. The order, after a hearing, designated defendant a level three sex offender pursuant to Correction Law article 6-C.

ORDERED that the order is affirmed without costs.

Defendant pleaded guilty to the charge of forcible touching (Penal Law § 130.52 [2]). At a hearing held pursuant to the Sex Offender Registration Act (SORA) (see Correction Law § 168-n), the People submitted the Risk Assessment Instrument prepared by the Board of Examiners of Sex Offenders, in which defendant was assessed a total of 75 points. The People argued that notwithstanding the fact that the 75-point assessment would presumptively classify defendant as a level two sex offender, defendant should be designated a risk level three sex offender based upon a presumptive override factor, to wit, defendant's prior felony sex conviction in the State of Florida, where he was required to register as a sex offender. Following the hearing, the District Court, without making any findings of fact with respect to the 75-point assessment set forth in the risk assessment instrument, designated defendant as a level three sex offender based solely on defendant's prior felony sex conviction.

Defendant's contention, that the prior Florida felony sex conviction could not be considered as the basis for presumptive override to classify him as a level three sex offender because the elements of the Florida offense do not amount to an equivalent felony offense under the Penal Law of New York, is without merit. Defendant may be classified as a predicate sex offender based upon the felony conviction in Florida since he was required to register as a sex offender in that jurisdiction (see Correction Law § 168-a [2] [d] [i], [ii]; [3] [b]; see People v Mann, 52 AD3d 884 [2008]; People v Johnson, 46 AD3d 1032, 1033 [2007]; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, Guidelines at Factor 9 [*2][2006] ["If an offender has a conviction for a felony sex crime, there is an override, and he is presumptively level 3"]).

The clear and convincing evidence of defendant's prior felony sex conviction presented at the SORA hearing mandates an "automatic override to a level three risk assessment, irrespective of the points scored on the risk assessment instrument" (People v Guitard, 57 AD3d 751, 752 [2008]). Moreover, we note that defendant has not presented any evidence of the existence of special circumstances warranting a downward departure (see id. at 752).

Accordingly, the order designating defendant a level three sex offender is affirmed.

Nicolai, P.J., Molia and LaCava, JJ., concur.
Decision Date: January 27, 2010