PEOPLE v. FORSBERG (2024)

DECISION & ORDER

Appeal by the defendant from an order of the County Court, Suffolk County (Karen M. Wilutis, J.), dated January 29, 2024, 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 three” (People v. Lobello, 123 A.D.3d 993, 994, 999 N.Y.S.2d 179;  see Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 3 [2006] [hereinafter Guidelines];  People v. Schiavoni, 107 A.D.3d 773, 966 N.Y.S.2d 690).  “The People bear the burden of proving the applicability of a particular override by clear and convincing evidence” (People v. Lobello, 123 A.D.3d at 994, 999 N.Y.S.2d 179;  see Correction Law § 168–n[3];  People v. Schiavoni, 107 A.D.3d at 773, 966 N.Y.S.2d 690).  Contrary to the defendant's contention, the People established by clear and convincing evidence the applicability of the fourth override, that there has been “a clinical assessment that the offender has a psychological, physical, or organic abnormality that decreases his ability to control impulsive sexual behavior” (Guidelines at 19;  see id. at 4).  The People proved that the defendant was diagnosed with paraphilia involving hebephilia and that an override to a presumptive level three risk designation was appropriate (see People v. Grief, 223 A.D.3d 917, 918, 205 N.Y.S.3d 118;  People v. Lagville, 136 A.D.3d 1005, 26 N.Y.S.3d 316;  People v. Long, 129 A.D.3d 687, 688, 10 N.Y.S.3d 336).

Contrary to the defendant's further contention, he was not entitled to a downward departure from his presumptive risk level.  The County Court properly determined that the imposition of points on the risk assessment instrument under risk factors 3 (number of victims) and 7 (relationship with victim) did not result in an overassessment of the defendant's risk to public safety (see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701;  People v. Glosque, 201 A.D.3d 823, 824, 157 N.Y.S.3d 392;  People v. Sofo, 168 A.D.3d 891, 892, 90 N.Y.S.3d 290;  cf.  People v. Sestito, 195 A.D.3d 869, 870, 145 N.Y.S.3d 849;  People v. Gonzalez, 189 A.D.3d 509, 511, 136 N.Y.S.3d 23), and the defendant failed to otherwise demonstrate the existence of a mitigating factor not already taken into account by the risk assessment instrument that would warrant a downward departure (see People v. Gillotti, 23 N.Y.3d at 857, 994 N.Y.S.2d 1, 18 N.E.3d 701).

The defendant's remaining contention is without merit.

Accordingly, the defendant was properly designated a level three sex offender.

MALTESE, J.P., GENOVESI, WAN and GOLIA, JJ., concur.