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THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. WILLIAM F. MARKS, Appellant.

Memorandum: We reject the contention of defendant that County Court erred in determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.). The court properly assessed 15 points for defendant's history of alcohol abuse ( see People v Vaughn, 26 AD3d 776; People v Moore, 16 AD3d 190, lv denied 4 NY3d 889; People v King, 15 AD3d 693), and defendant thus had a score that was 10 points in excess of that necessary to render him a level three risk. In addition, the court properly agreed with the People with respect to the existence of an "`override' factor," i.e., defendant's prior conviction of a sex crime ( People v Boan, 11 AD3d 956, 956, lv denied 4 NY3d 702), and we therefore conclude that the People met their "burden of proving the facts supporting the risk level classification sought by clear and convincing evidence" ( People v Dort, 18 AD3d 23, 24, lv denied 4 NY3d 885; see Correction Law § 168-n; People v McDaniel, 27 AD3d 1158; People v Hamelinck, 23 AD3d 1060). Contrary to his further contention, defendant failed to establish his entitlement to a downward departure from the presumptive risk level inasmuch as he failed to present the requisite clear and convincing evidence of the existence of special circumstances warranting a downward departure ( see McDaniel, 27 AD3d 1158; Hamelinck, 23 AD3d 1060; People v Douglas, 18 AD3d 967, 968, lv denied 5 NY3d 710).

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PEOPLE v. MARKS
(Jul 27, 2006)