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New York Prisoner's Prior Convictions for Sex Offenses Are Sufficient for Level 3 Classification
New York Prisoner's Prior Convictions for Sex Offenses Are Sufficient for
Level 3 Classification
In anticipation of the release from prison of Dale Mabb, a New York sex
offender, the state Board of Examiners of Sex Offenders convinced a trial
court to assess him to be a risk level 3 sex-offender based on Mabb's prior
attempted rape conviction. Mabb appealed, claiming that since NY Correction
Law, Art. 6-c (Art. 6-c) didn't mandate that offenders with a prior
sex-offense conviction be classified as a risk level 3, he shouldn't have
been so classified.
On appeal, the New York Court for the 3rd Department of its Appellate
Division found that just because Art. 6-c didn't mandate a risk level 3
classification, that didn't mean it prohibits such a classification. Thus,
Mabb's appeal was dismissed. See: People v. Mabb, 32 A.D.3d 1135, 821
N.Y.S.2d 483 (N.Y.A.D. 3 Dept. 2006).
Level 3 Classification
In anticipation of the release from prison of Dale Mabb, a New York sex
offender, the state Board of Examiners of Sex Offenders convinced a trial
court to assess him to be a risk level 3 sex-offender based on Mabb's prior
attempted rape conviction. Mabb appealed, claiming that since NY Correction
Law, Art. 6-c (Art. 6-c) didn't mandate that offenders with a prior
sex-offense conviction be classified as a risk level 3, he shouldn't have
been so classified.
On appeal, the New York Court for the 3rd Department of its Appellate
Division found that just because Art. 6-c didn't mandate a risk level 3
classification, that didn't mean it prohibits such a classification. Thus,
Mabb's appeal was dismissed. See: People v. Mabb, 32 A.D.3d 1135, 821
N.Y.S.2d 483 (N.Y.A.D. 3 Dept. 2006).
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Related legal case
People v. Mabb
| Year | 2006 |
|---|---|
| Cite | 32 A.D.3d 1135, 821 N.Y.S.2d 483 (N.Y.A.D. 3 Dept. |
| Level | State Court of Appeals |
| Attorney Fees | 0 |
| Damages | 0 |
| Injunction Status | N/A |
People v. Mabb, 32 A.D.3d 1135, 821 N.Y.S.2d 483 (N.Y.App.Div. 09/28/2006)
[1] NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT
[2] No. 98680
[3] 32 A.D.3d 1135, 821 N.Y.S.2d 483
[4] September 28, 2006
[5] THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
DALE R. MABB, APPELLANT.
[6] Justin Brusgul, Voorheesville, for appellant.
[7] Ann V. Sullivan, Special Prosecutor, Saratoga Springs, for respondent.
[8] The opinion of the court was delivered by: Peters, J.
[9] Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
[10] This opinion is uncorrected and subject to revision before publication in the Official Reports.
[11] Calendar Date: September 15, 2006
[12] Before: Cardona, P.J., Mercure, Crew III, Peters and Spain, JJ.
[13] MEMORANDUM AND ORDER
[14] Appeal from an order of the County Court of Saratoga County (Scarano Jr., J.), rendered June 7, 2005, which classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act.
[15] Following defendant's 2000 conviction upon his plea of guilty to rape in the second degree, he was sentenced to a prison term of 3 to 6 years. In anticipation of his release, the Board of Examiners of Sex Offenders completed a risk assessment instrument assigning defendant a score of 75, which placed him in the presumptive risk level II category under the Sex Offender Registration Act (see Correction Law art 6-c). However, the Board recommended that he be classified as a risk level III sex offender based on the existence of a presumptive override factor, namely, a 1994 felony conviction for attempted rape in the first degree. After a hearing, County Court adopted the Board's recommendation by written order and defendant now appeals.
[16] While the existence of an applicable override factor here, defendant's prior felony conviction for a sex crime does not mandate a risk level III classification (see People v Sanchez, 20 AD3d 693, 694 [2005]), it does raise defendant's presumptive risk level from level II to level III (see People v David W., 95 NY2d 130, 135 [2000]; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 3-4 [Nov. 1997]). Any downward departure from a presumptive risk level must be supported by clear and convincing evidence of mitigating circumstances (see People v Mothersell, 26 AD3d 620, 621 [2006]; People v Douglas, 18 AD3d 967, 968 [2005], lv denied 5 NY3d 710 [2005]). As no such evidence is presented here, we are unable to conclude that County Court abused its discretion in classifying defendant as a risk level III sex offender.
[17] Cardona, P.J., Mercure, Crew III and Spain, JJ., concur.
[18] ORDERED that the order is affirmed, without costs.
[1] NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT
[2] No. 98680
[3] 32 A.D.3d 1135, 821 N.Y.S.2d 483
[4] September 28, 2006
[5] THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
DALE R. MABB, APPELLANT.
[6] Justin Brusgul, Voorheesville, for appellant.
[7] Ann V. Sullivan, Special Prosecutor, Saratoga Springs, for respondent.
[8] The opinion of the court was delivered by: Peters, J.
[9] Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
[10] This opinion is uncorrected and subject to revision before publication in the Official Reports.
[11] Calendar Date: September 15, 2006
[12] Before: Cardona, P.J., Mercure, Crew III, Peters and Spain, JJ.
[13] MEMORANDUM AND ORDER
[14] Appeal from an order of the County Court of Saratoga County (Scarano Jr., J.), rendered June 7, 2005, which classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act.
[15] Following defendant's 2000 conviction upon his plea of guilty to rape in the second degree, he was sentenced to a prison term of 3 to 6 years. In anticipation of his release, the Board of Examiners of Sex Offenders completed a risk assessment instrument assigning defendant a score of 75, which placed him in the presumptive risk level II category under the Sex Offender Registration Act (see Correction Law art 6-c). However, the Board recommended that he be classified as a risk level III sex offender based on the existence of a presumptive override factor, namely, a 1994 felony conviction for attempted rape in the first degree. After a hearing, County Court adopted the Board's recommendation by written order and defendant now appeals.
[16] While the existence of an applicable override factor here, defendant's prior felony conviction for a sex crime does not mandate a risk level III classification (see People v Sanchez, 20 AD3d 693, 694 [2005]), it does raise defendant's presumptive risk level from level II to level III (see People v David W., 95 NY2d 130, 135 [2000]; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 3-4 [Nov. 1997]). Any downward departure from a presumptive risk level must be supported by clear and convincing evidence of mitigating circumstances (see People v Mothersell, 26 AD3d 620, 621 [2006]; People v Douglas, 18 AD3d 967, 968 [2005], lv denied 5 NY3d 710 [2005]). As no such evidence is presented here, we are unable to conclude that County Court abused its discretion in classifying defendant as a risk level III sex offender.
[17] Cardona, P.J., Mercure, Crew III and Spain, JJ., concur.
[18] ORDERED that the order is affirmed, without costs.