PEOPLE v. COX

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PEOPLE of State of New York, respondent, v. Gary COX, appellant.

Decided: February 27, 2013

RUTH C. BALKIN, J.P., PLUMMER E. LOTT, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ. Steven Banks, New York, N.Y. (Lorraine Maddalo of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel; Daniel Berman on the brief), for respondent.

Appeal by the defendant from an order of the Supreme Court, Kings County (Walsh, J.), dated July 27, 2009, 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 Supreme Court's designation of the defendant as a level three sex offender under the Sex Offender Registration Act was supported by clear and convincing evidence (see Correction Law article 6–C; People v. Dong V. Dao, 9 A.D.3d 401, 401–402, 779 N.Y.S.2d 914). Contrary to the defendant's contention, the court properly assessed him 15 points under risk factor 11 for a history of drug abuse (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 15 [2006]; People v. Gonzalez, 48 A.D.3d 284, 852 N.Y.S.2d 71). In addition, there is no merit to the defendant's contention that, because he had obtained a certificate of relief from civil disabilities in connection with his conviction of a prior misdemeanor sex crime, he was improperly assessed points for that conviction under risk factor 9 (see Correction Law § 701; see generally Able Cycle Engines v. Allstate Ins. Co., 84 A.D.2d 140, 445 N.Y.S.2d 469; Matter of Sturman v. Public Health Council, 58 A.D.2d 389, 397 N.Y.S.2d 168, affd 47 N.Y.2d 837, 418 N.Y.S.2d 584, 392 N.E.2d 570; see also Peluso v. Smith, 142 Misc.2d 642, 540 N.Y.S.2d 631; cf. People v. Campbell, 98 A.D.3d 5, 946 N.Y.S.2d 587). In addition, there is no merit to the defendant's contention that he was entitled to a downward departure from the presumptive risk level (see People v. Wyatt, 89 A.D.3d 112, 931 N.Y.S.2d 85).

Consequently, the determination of the Supreme Court to uphold the 150 points which the Board ascribed to the defendant in the Risk Assessment Instrument, and to designate the defendant a level three offender, should not be disturbed (see People v. Pardo, 50 A.D.3d 992, 854 N.Y.S.2d 899).

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