PEOPLE v. BARNES (2006)

 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 A.D.2d 919, 920-921, 755 N.Y.S.2d 183).   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, 755 N.Y.S.2d 183).   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 A.D.2d 759, 760, 762 N.Y.S.2d 548;  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.

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

MEMORANDUM: