Opinion
KA 04-00093.
December 30, 2004.
Appeal from an order of the Ontario County Court (Craig J. Doran, J.), entered December 11, 2003. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.
Before: Pigott, Jr., P.J., Pine, Kehoe, Gorski and Martoche, 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 pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.). Defendant contends that County Court erred in denying his request for a downward departure from the presumptive risk level because one of his prior convictions upon which his presumptive risk level was calculated was for endangering the welfare of a child (Penal Law § 260.10) and did not involve events of a sexual nature. We reject that contention. "It was within the court's discretion to [classify defendant as a level three risk] . . . based upon clear and convincing evidence of the facts in support thereof" ( People v. Billingsley, 6 AD3d 1170, 1170, lv denied 3 NY3d 605; see Correction Law § 168-n; People v. Guaman, 8 AD3d 545).