Opinion
No. 2804.
February 19, 2008.
Order, Supreme Court, New York County (William A. Wetzel, J.), entered on or about November 15, 2005, which adjudicated defendant a level three sex offender under the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.
Steven Banks, The Legal Aid Society, New York (Steven J. Miraglia of counsel), for appellant.
Robert M. Morgenthau, District Attorney, New York (Dennis Rambaud of counsel), for respondent.
Before: Tom, J.P., Nardelli, Williams and McGuire, JJ.
The People met their burden of establishing, by clear and convincing evidence, risk factors bearing a sufficient total point score to support a level three sex offender adjudication. Since the victim's grand jury testimony, standing alone, clearly established that defendant used a dangerous instrument during the rape, the court properly assessed points under the corresponding risk factor ( see Correction Law § 168-n; People v Quintana, 29 AD3d 308, lv denied 7 NY3d 709). The court also properly assessed points under the risk factor for drug abuse, based on the case summary and presentence reports ( see People v Ramos, 41 AD3d 1250, lv denied 9 NY3d 809), and defendant's claim of improper double counting is without merit. Defendant did not establish any special circumstances warranting a downward departure from his presumptive risk level ( see People v Guaman, 8 AD3d 545).