PEOPLE v. JOE

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Gabriel JOE, Defendant-Appellant.

Decided: February 28, 2006

TOM, J.P., MAZZARELLI, SULLIVAN, SWEENY, MALONE, JJ. Laura R. Johnson, The Legal Aid Society, New York (Nancy E. Little of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Nicole Beder of counsel), for respondent.

Order, Supreme Court, New York County (Ruth Levine Sussman, J.), entered on or about March 8, 2005, which adjudicated defendant a level-three sex offender under the Sex Offender Registration Act (Correction Law art. 6-c), unanimously affirmed, without costs.

The People met their burden of establishing various risk factors bearing a sufficient total point score to support a level-three sex offender adjudication.   Defendant's 1974 rape conviction, for which he was on parole at the time of the current sex offense, was a prior offense for SORA purposes, and defendant's arguments to the contrary are without merit.   To the extent that defendant is challenging the choice of risk factors made by the Legislature and Board of Examiners of Sex Offenders (see Correction Law § 168-l[5] ), he has not established that any of the risk factors at issue is irrational.   The court also properly declined to reduce defendant's status to level two on the basis of the factors he alleged (see People v. Guaman, 8 A.D.3d 545, 778 N.Y.S.2d 704 [2004] ).