Calendar Date: June 4, 2018Before: McCarthy, J.P., Egan Jr., Lynch, Devine and Aarons, JJ.__________Rural Law Center of New York, Castleton (Kelly L. Egan ofcounsel), for appellant.Jason M. Carusone, District Attorney, Lake George (RebeccaNealon of counsel), for respondent.__________Egan Jr., J.Appeal from an order of the County Court of Warren County(Hall Jr., J.), entered September 8, 2016, which classifieddefendant as a risk level three sex offender and a sexuallyviolent offender pursuant to the Sex Offender Registration Act.In March 2011, defendant entered an Alford plea of guiltyto sexual abuse in the first degree arising from an incident inwhich he forcibly engaged in anal intercourse with a 21-year-oldmale. As a result, he was sentenced to 3½ years in prison andfive years of postrelease supervision. In May 2011, defendantwas convicted of sexual abuse in the first degree after he hadinappropriate sexual contact with his girlfriend’s grandchildren.He was sentenced to seven years in prison and eight years ofpostrelease supervision for this crime, to run concurrently withthe prior sentence. Defendant has a number of criminalconvictions predating his 2011 convictions, including aconviction for rape in the third degree. In anticipation of hisrelease from prison, the Board of Examiners of Sex Offendersprepared a risk assessment instrument (hereinafter RAI) pursuantto the Sex Offender Registration Act (see Correction Law art 6-C)that assigned defendant a total of 95 points, placing him in therisk level two classification. However, the Board applied anoverride based on defendant’s prior felony conviction for a sexcrime that presumptively placed him in the risk level threeclassification. Following a hearing, County Court agreed withthe classification set forth in the RAI and adjudicated defendanta risk level three sex offender and a sexually violent offender.Defendant now appeals.Initially, defendant contends that he was improperlyassessed 15 points under risk factor 12 of the RAI based on hisexpulsion from a sex offender treatment program because he has alearning disability and was unable to complete the program withinthe time allotted. We are not persuaded. Defendant’s purportedcognitive limitations are not substantiated by the record.Rather, it discloses that he successfully completed otherprograms and was expelled from the program at issue due to “lackof progress/skill.” Under the circumstances presented, we findno error in the assessment of points under risk factor 12 (seePeople v Middlemiss, 153 AD3d 1096, 1097-1098 [2017], lv denied30 NY3d 906 [2017]; People v Jackson, 134 AD3d 1580, 1581[2015]).In any event, regardless of the points assessed under riskfactor 12, the Board applied an override based on defendant’sundisputed prior felony conviction for a sex crime thatpresumptively placed him in the risk level three classification.Defendant has not met his burden of demonstrating by apreponderance of the evidence that a downward modification waswarranted based upon mitigating circumstances that were not takeninto account by the RAI (see People v Gillotti, 23 NY3d 841, 861-863 [2014]; People v Middlemiss, 153 AD3d at 1098; People vScone, 145 AD3d 1327, 1328 [2016]). Therefore, we find no reasonto disturb the risk level three classification.McCarthy, J.P., Lynch, Devine and Aarons, JJ., concur.ORDERED that the order is affirmed, without costs.
