People v. Richardson

Appeal by the defendant from an order of the Supreme Court, Westchester County (Molea, J.), entered December 3, 2013, 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 People proved by clear and convincing evidence that the defendant had previously been convicted of a felony sex offense. Accordingly, the Supreme Court properly determined that he was presumptively a level three offender without regard to the number of points assessed on the risk assessment instrument (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 3-4 [2006]; People v Barfield, 115 AD3d 835, 835 [2014]; People v Manson, 111 AD3d 688, 688 [2013]; People v Henry, 107 AD3d 678, 679 [2013]).

The defendant failed to establish by a preponderance of the evidence any circumstance that could have been a basis for a downward departure (see People v Gillotti, 23 NY3d 841, 861, 864 [2014]; People v Henry, 107 AD3d at 679). Accordingly, the Supreme Court did not have discretion to downwardly depart from the presumptive risk level, and it properly designated the defendant a level three sex offender (see People v Henry, 107 AD3d at 679).

The defendant’s remaining contentions either are without *744 merit, are unpreserved for appellate review, or have been rendered academic in light of our determination.