People v Malerba, 2016 NY Slip Op 01307 [136 AD3d 1006]

February 24, 2016

Appellate Division, Second Department

[*1]

The People of the State of New York, Respondent,

v

Vincent Malerba, Appellant.

Lynn W. L. Fahey, New York, NY (Joshua M. Levine of counsel), for appellant.

Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove, Morgan J. Dennehy, and Daniel Berman of counsel), for respondent.

Appeal by the defendant from an order of the Supreme Court, Kings County (Harrington, J.), dated April 29, 2014, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.

Ordered that the order is affirmed, without costs or disbursements.

The defendant was presumptively a level three sex offender pursuant to an automatic override based upon the fact that he murdered the victim during the course of his sexual assault ( see People v Malerba , 108 AD2d 759 [1985]; People v Abreu , 89 AD3d 711 [2011]). The Supreme Court properly determined that the defendant was not entitled to a downward departure from his presumptive risk level ( see People v Grubbs , 107 AD3d 771 [2013]; People v Bussie , 83 AD3d 920 , 921 [2011]). Mastro, J.P., Chambers, Miller and Hinds-Radix, JJ., concur..