Opinion
2012-01-31
The PEOPLE of the State of New York, Respondent, v. David QUINONES, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (James Eckert of Counsel), for Defendant–Appellant. Michael C. Green, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (James Eckert of Counsel), for Defendant–Appellant. Michael C. Green, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND GORSKI, JJ.
MEMORANDUM:
We reject the contention of defendant that Supreme Court erred in determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.). Defendant failed to request a downward departure to a level two risk, and thus he failed to preserve for our review his contention that the court erred in failing to afford him that downward departure from his presumptive level three risk ( see People v. Ratcliff, 53 A.D.3d 1110, 862 N.Y.S.2d 686, lv. denied 11 N.Y.3d 708, 868 N.Y.S.2d 600, 897 N.E.2d 1084). In any event, we conclude that “defendant failed to present clear and convincing evidence of special circumstances justifying a downward departure” ( People v. McDaniel, 27 A.D.3d 1158, 1159, 810 N.Y.S.2d 723, lv. denied 7 N.Y.3d 703, 819 N.Y.S.2d 870, 853 N.E.2d 241; see People v. Cummings, 81 A.D.3d 1261, 916 N.Y.S.2d 432, lv. denied 16 N.Y.3d 711, 2011 WL 1643295).
Insofar as defendant contends that the court erred in treating his prior youthful offender adjudication as a conviction pursuant to risk factor nine in the criminal history section of the risk assessment instrument (RAI), that contention is without merit. “As used [in the criminal history section of the RAI], the term ‘crime’ includes criminal convictions, youthful offender adjudications and juvenile delinquency findings. The Board [of Examiners of Sex Offenders] concluded that these determinations are reliable indicators of wrongdoing and, therefore, should be considered in assessing an offender's likelihood of reoffense and danger to public safety” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 6 [2006]; see People v. Wilkins, 77 A.D.3d 588, 909 N.Y.S.2d 362, lv. denied 16 N.Y.3d 703, 2011 WL 135731; People v. Irving, 45 A.D.3d 1389, 1389–1390, 846 N.Y.S.2d 487, lv. denied 10 N.Y.3d 703, 854 N.Y.S.2d 103, 883 N.E.2d 1010).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.