Opinion
2012-12-21
The PEOPLE of the State of New York, Respondent, v. Richard ODUM, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (James Eckert of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (James Eckert of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND MARTOCHE, JJ.
MEMORANDUM:
Defendant appeals from an order of Monroe County Court that affirmed an order of Gates Town Court determining that he is a level two risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.). We reject defendant's contention that he was an acquaintance of the victim and that the People therefore failed to establish the basis for the assessment of 20 points under risk factor 7, i.e., his relationship with the victim. The evidence established that “the victim met defendant for the first time [shortly before] the day of the incident, did not know his legal name, and apparently knew no other personal information about him. Thus, the court properly concluded that ‘defendant was a stranger to the victim’ ” ( People v. Gaines, 39 A.D.3d 1212, 1212–1213, 834 N.Y.S.2d 417,lv. denied9 N.Y.3d 803, 840 N.Y.S.2d 763, 872 N.E.2d 876).
Assuming, arguendo, that, by seeking a downward departure from his presumptive risk level on a different ground, defendant preserved for our review his contention that a downward departure to level one is warranted because of his lack of contact with the criminal justice system since the time of the offense, we conclude that his contention is without merit. Defendant failed “to present clear and convincing evidence of special circumstances justifying a downward departure” ( People v. Regan, 46 A.D.3d 1434, 1435, 848 N.Y.S.2d 787;see People v. Bennett, 90 A.D.3d 1664, 1664, 934 N.Y.S.2d 922,lv. denied18 N.Y.3d 810, 944 N.Y.S.2d 482, 967 N.E.2d 707;People v. Ratcliff, 53 A.D.3d 1110, 1110, 862 N.Y.S.2d 686,lv. denied11 N.Y.3d 708, 868 N.Y.S.2d 600, 897 N.E.2d 1084).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.