Opinion
8832.
September 7, 2006.
Order, Supreme Court, Bronx County (Megan Tallmer, J.), entered on or about July 15, 2004, which adjudicated defendant a level three sex offender and a sexual predator under the Sex Offender Registration Act (Correction Law art 6-C), unanimously modified, on the law, to vacate the sexual predator adjudication and reduce the sex offender adjudication to level two and, except as so modified, affirmed, without costs.
Richard M. Greenberg, Office of the Appellate Defender, New York (Anastasia Heeger of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Jean Soo Park of counsel), for respondent.
Before: Buckley, P.J., Tom, Saxe, Sullivan and Williams, JJ.
As the People concede, the classification of defendant as a statutory sexual predator is unsupported by the requisite diagnosis of mental disease (Correction Law § 168-a [a]). The court correctly concluded that defendant's point score warranted a level two assessment. The proof submitted at the risk assessment hearing failed to support, by clear and convincing evidence, the court's upward departure to level three based on enumerated special circumstances ( see People v Guaman, 8 AD3d 545; cf. People v Sanford, 16 AD3d 1082, lv denied 4 NY3d 711; People v Roland, 292 AD2d 271, lv denied 98 NY2d 614). The parties having been extended the opportunity to reopen the proceedings to submit further evidence and having failed to respond, we find no basis upon which to remand for further proceedings. To the extent defendant argues that he was denied a fair hearing, the record indicates that the court accorded defendant a full opportunity to be heard on all relevant matters. We have considered defendant's remaining arguments and find them unavailing.