Opinion
KA 05-00909.
September 22, 2006.
Appeal from an order of the Supreme Court, Monroe County (John J. Brunetti, A.J.), entered February 16, 2005. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.
EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (MARGARET A. JONES OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Present — Pigott, Jr., P.J., Hurlbutt, Scudder, Kehoe and Green, 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.) Although Supreme Court reduced the total risk factor score on the risk assessment instrument by 30 points, it denied (defendant's request for a further downward departure to a level two risk. Contrary to defendant's contention, the court did not abuse its discretion in determining that the fact that defendant had not been charged with a sex offense since his release from imprisonment on the underlying offense did not warrant a downward departure ( see generally § 168-n [3]; People v Boan, 11 AD3d 956, lv denied 4 NY3d 702). We conclude that the court's determination is supported by clear and convincing evidence ( see People v Sutton, 19 AD3d 1045, lv denied 5 NY3d 709; People v Barnwell, 6 AD3d 1146, 1147, lv denied 3 NY3d 604).