Opinion
No. KA 05-00266.
November 17, 2006.
Appeal from an order of the Supreme Court, Monroe County (Kenneth R. Fisher, J.), entered January 6, 2005. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.
Before: Present — Scudder, J.P., Kehoe, Martoche and Green, JJ.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: Defendant appeals from an order determining that he is a level three risk under the Sex Offender Registration Act (Correction Law § 168 et seq.). Contrary to defendant's contention, clear and convincing evidence supports the assessment of 20 points on the risk assessment instrument for two victims ( see People v Moore, 16 AD3d 190, lv denied 4 NY3d 889; People v Jimenez, 178 Misc 2d 319, 329). In any event, the presumptive classification of defendant as a level three risk would not change if those points were eliminated, and Supreme Court properly concluded that a downward departure from that presumptive classification was not warranted ( see People v Foster, 13 AD3d 1117). Contrary to the further contention of defendant, the court did not err in conducting the redetermination hearing in his absence ( see generally People v Warrington, 19 AD3d 881, 882; People v Brooks, 308 AD2d 99, 106, lv denied 1 NY3d 502).