Opinion
98680.
September 28, 2006.
Peters, J. Appeal from an order of the County Court of Saratoga County (Scarano, Jr., J.), rendered June 7, 2005, which classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act.
Justin Brusgul, Voorheesville, for appellant.
Ann V. Sullivan, Special Prosecutor, Saratoga Springs, for respondent.
Before: Cardona, P.J., Mercure, Crew III and Spain, JJ.
Following defendant's 2000 conviction upon his plea of guilty to rape in the second degree, he was sentenced to a prison term of 3 to 6 years. In anticipation of his release, the Board of Examiners of Sex Offenders completed a risk assessment instrument assigning defendant a score of 75, which placed him in the presumptive risk level II category under the Sex Offender Registration Act ( see Correction Law art 6-C). However, the Board recommended that he be classified as a risk level III sex offender based on the existence of a presumptive override factor, namely, a 1994 felony conviction for attempted rape in the first degree. After a hearing, County Court adopted the Board's recommendation by written order and defendant now appeals.
While the existence of an applicable override factor — here, defendant's prior felony conviction for a sex crime — does not mandate a risk level III classification ( see People v Sanchez, 20 AD3d 693, 694), it does raise defendant's presumptive risk level from level II to level III ( see People v David W., 95 NY2d 130, 135; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 3-4 [Nov. 1997]). Any downward departure from a presumptive risk level must be supported by clear and convincing evidence of mitigating circumstances ( see People v Mothersell, 26 AD3d 620, 621; People v Douglas, 18 AD3d 967, 968, lv denied 5 NY3d 710). As no such evidence is presented here, we are unable to conclude that County Court abused its discretion in classifying defendant as a risk level III sex offender.
Ordered that the order is affirmed, without costs.