PEOPLE v. IVERSON (2011)

 Defendant appeals from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act ( [SORA] Correction Law § 168 et seq.).   Defendant was previously classified a level one risk pursuant to SORA, and he contends that the People were required to file a petition seeking modification of his risk level pursuant to Correction Law § 168–o (3).   Defendant failed to preserve that contention for our review (see generally People v. Windham, 10 N.Y.3d 801, 856 N.Y.S.2d 557, 886 N.E.2d 179;  People v. Charache, 9 N.Y.3d 829, 830, 841 N.Y.S.2d 223, 873 N.E.2d 267;  People v. Daniels, 86 A.D.3d 921, 922, 926 N.Y.S.2d 788, lv. denied 17 N.Y.3d 715, 2011 WL 5041661) and, in any event, that contention is without merit.  Correction Law § 168–o (3) does not require the filing of a petition to modify the classification of a sex offender convicted of a new qualifying sex offense (see § 168–a[2][a] ).

 Defendant was assessed 115 points based upon the factors set forth in the risk assessment instrument (RAI), presumptively classifying him as a level three risk (see generally Correction Law § 168–l [5], [6] ).   Contrary to the contention of defendant, his prior felony conviction for a sex offense, i.e., rape in the third degree (Penal Law § 130.25[2] ), “ ‘may be used as both an override factor and a basis upon which to add 30 points for risk factor 9 on the [RAI]’ ” (People v. Gilbert, 78 A.D.3d 1584, 1585, 910 N.Y.S.2d 808, lv. denied 16 N.Y.3d 704, 2011 WL 446506;  see Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary, at 13–14 [2006] ).   We further conclude that County Court's alternative application of the presumptive override for a prior sex felony conviction to classify defendant a level three risk was warranted (see Risk Assessment Guidelines and Commentary, at 3–4;  People v. Ratcliff, 53 A.D.3d 1110, 862 N.Y.S.2d 686, lv. denied 11 N.Y.3d 708, 868 N.Y.S.2d 600, 897 N.E.2d 1084).

 Defendant failed to preserve for our review his contention that he was entitled to a downward departure from his presumptive risk level on the ground that both the present and prior sex offenses were nonviolent (see Gilbert, 78 A.D.3d at 1585–1586, 910 N.Y.S.2d 808;  Ratcliff, 53 A.D.3d 1110, 862 N.Y.S.2d 686).   In any event, “defendant's multiple convictions of sexual crimes constitute ‘compelling evidence that [he] poses a serious risk to public safety’ ․, and thus a downward departure from the presumptive risk level is not warranted” (Gilbert, 78 A.D.3d at 1586, 910 N.Y.S.2d 808).

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

MEMORANDUM: