State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: October 23, 2014 515769 

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THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

TYRONE PACE, Also Known as

SCOTT PACE,

Appellant.

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Calendar Date: September 10, 2014

Before: Lahtinen, J.P., McCarthy, Rose, Lynch and Devine, JJ.

__________

Jane M. Bloom, Monticello, for appellant.

James R. Farrell, District Attorney, Monticello, for

respondent.

__________

Lahtinen, J.P.

Appeal from an order of the County Court of Sullivan County

(Labuda, J.), entered August 24, 2012, which classified defendant

as a risk level III sex offender pursuant to the Sex Offender

Registration Act.

In 2000, defendant was sentenced to 15 years in prison upon

his plea of guilty to rape in the first degree for forcing a 13-

year-old victim to have sexual intercourse with him. At that

time, he also had a prior felony conviction involving sexual

activity with another 13-year-old female victim. As his prison

release date approached, the Board of Examiners of Sex Offenders

calculated a total risk factor of 100, which fell within the

range of a risk level II sex offender. However, the Board noted
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that his prior felony conviction for a sex crime constituted an

override factor presumptively subjecting him to a risk level III

classification. Following a hearing, County Court classified

defendant as a risk level III sex offender. Defendant appeals.

We affirm. Defendant argues that the override factor for

his prior sex crime felony conviction was improperly referred to

at the hearing as "mandatory" rather than "presumptive." 

Treating the presumptive override as mandatory is a ground for

reversal (see People v Denny, 87 AD3d 1230, 1231 [2011]; People v

Reynolds, 68 AD3d 955, 955-956 [2009]). During the hearing, the

People urged that the override was mandatory and County Court

characterized it as such when directing the People to submit

proposed findings. However, the subsequent order, while noting

that the People had argued for a mandatory override, nevertheless

went on to state, when discussing the relevant findings, that the

prior felony sex crimes conviction constituted a presumptive

override. Since the correct standard was used in the part of the

order discussing the pertinent facts and concluding that a

downward departure was not warranted, we are unpersuaded that

reversal is required. 

County Court's order set forth sufficient reasons for

denying defendant's request for a downward departure from the

presumptive level (see People v Carter, 35 AD3d 1023, 1023-1024

[2006], lv denied 8 NY3d 810 [2007]), and its determination in

such regard was within its discretion (see People v Kotzen, 100

AD3d 1162, 1163 [2012], lv denied 20 NY3d 860 [2013]). 

Defendant's contention that there was insufficient evidence of

his history of drug abuse to support the Board assessing him 15

points was not preserved for our review (see People v Coleman, 45

AD3d 1118, 1118 [2007], lv denied 10 NY3d 705 [2008]) and, in any

event, is unpersuasive. The remaining arguments have been

considered and are unavailing.

McCarthy, Rose, Lynch and Devine, JJ., concur.
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ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court