        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1395
KA 10-00827
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TRENTON L. IVERSON, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Monroe County Court (Frank P. Geraci,
Jr., J.), entered January 29, 2010. The order determined that
defendant is a level three risk pursuant to the Sex Offender
Registration Act.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Defendant appeals from an order determining that he
is a level three risk pursuant to the Sex Offender Registration Act
([SORA] Correction Law § 168 et seq.). Defendant was previously
classified a level one risk pursuant to SORA, and he contends that the
People were required to file a petition seeking modification of his
risk level pursuant to Correction Law § 168-o (3). Defendant failed
to preserve that contention for our review (see generally People v
Windham, 10 NY3d 801; People v Charache, 9 NY3d 829, 830; People v
Daniels, 86 AD3d 921, 922, lv denied 17 NY3d 715) and, in any event,
that contention is without merit. Correction Law § 168-o (3) does not
require the filing of a petition to modify the classification of a sex
offender convicted of a new qualifying sex offense (see § 168-a [2]
[a]).

     Defendant was assessed 115 points based upon the factors set
forth in the risk assessment instrument (RAI), presumptively
classifying him as a level three risk (see generally Correction Law §
168-l [5], [6]). Contrary to the contention of defendant, his prior
felony conviction for a sex offense, i.e., rape in the third degree
(Penal Law § 130.25 [2]), “ ‘may be used as both an override factor
and a basis upon which to add 30 points for risk factor 9 on the
[RAI]’ ” (People v Gilbert, 78 AD3d 1584, 1585, lv denied 16 NY3d 704;
see Sex Offender Registration Act: Risk Assessment Guidelines and
Commentary, at 13-14 [2006]). We further conclude that County Court’s
                                 -2-                          1395
                                                         KA 10-00827

alternative application of the presumptive override for a prior sex
felony conviction to classify defendant a level three risk was
warranted (see Risk Assessment Guidelines and Commentary, at 3-4;
People v Ratcliff, 53 AD3d 1110, lv denied 11 NY3d 708).

     Defendant failed to preserve for our review his contention that
he was entitled to a downward departure from his presumptive risk
level on the ground that both the present and prior sex offenses were
nonviolent (see Gilbert, 78 AD3d at 1585-1586; Ratcliff, 53 AD3d
1110). In any event, “defendant’s multiple convictions of sexual
crimes constitute ‘compelling evidence that [he] poses a serious risk
to public safety’ . . ., and thus a downward departure from the
presumptive risk level is not warranted” (Gilbert, 78 AD3d at 1586).




Entered:   December 23, 2011                    Frances E. Cafarell
                                                Clerk of the Court
