Opinion
KA 03-00403.
Decided June 14, 2004.
Appeal from an order of the Monroe County Court (Frank P. Geraci, Jr., J.), entered December 17, 2002. The order determined that defendant is a level three risk under the Sex Offender Registration Act.
EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (PATRICK H. FIERRO OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: WISNER, J.P., HURLBUTT, GORSKI, MARTOCHE, AND HAYES, JJ.
MEMORANDUM AND ORDER
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.). The Board of Examiners of Sex Offenders (Board) assessed defendant as a level two risk, based in part upon its finding that defendant failed to accept responsibility for his actions by continuing to deny that he had used a knife in the commission of the underlying crime. In assessing defendant as a level three risk, County Court noted defendant's past history of substance abuse, i.e., defendant's convictions based on drug possession (cocaine) and drug trafficking (heroin), as well as defendant's admitted extensive use of marihuana.
We conclude that the court's determination of defendant's risk level is supported by clear and convincing evidence ( see Correction Law § 168-n; People v. Delmarle, 2 A.D.3d 1446, 1447, lv denied ___ N.Y.3d ___ [Mar. 30, 2004]). Indeed, the court was not "bound by the recommendation of the Board and, in the exercise of its discretion, [was entitled to] depart from that recommendation and determine [defendant's] risk level based upon the facts and circumstances that appear[ed] in the record" ( Matter of New York State Bd. of Examiners of Sex Offenders v. Ransom, 249 A.D.2d 891, 891-892). The record establishes that the court relied upon competent evidence in making its assessment ( see People v. Myers, 306 A.D.2d 334, lv denied 100 N.Y.2d 516) and properly considered the complainant's affidavit indicating that defendant had used a knife in the commission of the underlying crime, as well as defendant's two prior drug convictions and admitted history of extensive marihuana use. We note in addition that defendant offered no evidence in opposition thereto ( see People v. Wroten, 286 A.D.2d 189, 199, lv denied 97 N.Y.2d 610). Thus, we affirm the order.