Opinion
KA 05-01752.
September 29, 2006.
Appeal from an order of the Genesee County Court (Robert C. Noonan, J.), entered June 8, 2005. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.
GARY A. HORTON, PUBLIC DEFENDER, BATAVIA (BRIDGET L. FIELD OF COUNSEL), FOR DEFENDANT-APPELLANT.
LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (KEVIN T. FINNELL OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Present — Hurlbutt, J.P., Scudder, Gorski 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.). The total risk factor score on the risk assessment instrument prepared by the Board of Examiners of Sex Offenders (Board) resulted in the presumptive classification of defendant as a level three risk, but the Board recommended a downward departure to level two. County Court, however, "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 led] in the record'" ( People v Carswell, 8 AD3d 1073, 1073, lv denied 3 NY3d 607, quoting Matter of New York State Bd. of Examiners of Sex Offenders v Ransom, 249 AD2d 891, 891-892 [1998]). The record supports the court's determination that there was no "mitigating factor of a kind, or to a degree, not otherwise adequately taken into account by the guidelines," and thus that a departure from the presumptive risk level was not warranted (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [Nov. 1997]). Defendant failed to preserve for our review his contention that he was denied due process as the result of the failure of the prosecutor to provide timely notice as required by Correction Law § 168-n (3) that he would be seeking a risk level determination differing from the Board's recommendation ( see People v Smith, 17 AD3d 1045, lv denied 5 NY3d 705; see also People v Girup, 9 AD3d 913, 914). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see CPL 470.15 [a]).