Opinion
No. KA 06-00123.
December 22, 2006.
Appeal from an order of the Ontario County Court (Frederick G. Reed, J.), entered June 16, 2005. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.
ROBERT TUCKER, CANANDAIGUA, FOR DEFENDANT-APPELLANT.
R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JAMES B. RITTS OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: Scudder, EJ., Martoche, Centra and Pine, 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.). We reject defendant's contention that County Court erred in assessing points on the risk assessment instrument for a prior youthful offender adjudication ( see People v Peterson, 8 AD3d 1124, lv denied 3 NY3d 607). Also contrary to defendant's contention, the court's upward departure from the presumptive risk level is supported by clear and convincing evidence of "'an aggravating or mitigating factor of a kind, or to a degree, not otherwise adequately taken into account by the [risk assessment] guidelines'" ( People v Madlin, 302 AD2d 751, 752; cf. People v Zehner, 24 AD3d 826).