PEOPLE v. JIMENEZ (2026)

DECISION & ORDER

Appeal by the defendant from an order of the County Court, Suffolk County (Karen M. Wilutis, J.), dated April 14, 2025, 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 defendant was convicted, upon his plea of guilty, of aggravated sexual abuse in the second degree, two counts of sexual abuse in the first degree, endangering the welfare of a child, and false personation.  In an order dated April 14, 2025, the County Court, after a hearing, designated the defendant a level three sex offender.  The defendant appeals.

In establishing a defendant's risk level pursuant to the Sex Offender Registration Act (SORA) (Correction Law art 6–C), the People bear the burden of establishing facts supporting the determination sought by clear and convincing evidence (see People v. Colon, 235 AD3d 665, 666).  In assessing points, evidence may be derived from the defendant's admission, the victim's statements, evaluative reports completed by the supervising probation officer, parole officer, or corrections counselor, case summaries prepared by the Board of Examiners of Sex Offenders, or any other reliable source, including reliable hearsay (see id.).

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 (see Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 3 [2006];  People v. Allen, 243 AD3d 820, 821).  The first override, which is relevant to this appeal, is for a prior felony conviction of a sex crime (see People v. McCurdy, 198 AD3d 991, 992).  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. Allen, 243 AD3d at 821).  Once the People have sustained this burden, a SORA court is not possessed of any discretion in determining whether to apply an override;  the application of the override is automatic (see People v. Johnson, 229 AD3d 469, 470).

Here, the People met their burden of establishing, by clear and convincing evidence, that the County Court should apply an automatic override addressing the defendant's prior felony conviction of a sex crime (see People v. McCurdy, 198 AD3d at 992–993;  People v. Roache, 110 AD3d 776, 777).  Therefore, irrespective of the points scored on the risk assessment instrument, the defendant was presumptively a level three sex offender (see People v. McCurdy, 198 AD3d at 992;  People v. Roache, 110 AD3d at 777).  In response, the defendant failed to seek a downward departure from the presumptive risk level.

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

In light of our determination, the defendant's remaining contentions need not be reached.

DUFFY, J.P., CHRISTOPHER, LANDICINO and LOVE, JJ., concur.