Opinion
2008-1730 W C.
Decided June 29, 2009.
Appeal from an order of the City Court of Yonkers, Westchester County (Charles D. Wood, J.), dated August 21, 2008. The order, after a hearing, designated defendant a level two sex offender.
Order affirmed without costs.
PRESENT: RUDOLPH, P.J., MOLIA and SCHEINKMAN, JJ.
At a hearing to determine defendant's risk level pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.), defendant contested the facts relating to his living and employment situation. Following the hearing, the City Court assessed defendant with a total of 90 points, including 10 points for having an inappropriate living situation/employment, and designated him a level two sex offender. On appeal, defendant raises the same issue.
Even assuming that the City Court's finding with respect to defendant's living situation was not based upon clear and convincing evidence, the court's assessment was nevertheless proper since the risk factor also included an evaluation of defendant's employment situation, which, based upon clear and convincing evidence, was found to be inappropriate ( see generally Correction Law § 168-n; People v Mingo, 49 AD3d 148). Consequently, there is no basis to disturb defendant's presumptive classification as a level two sex offender.
While defendant contends that a downward departure to a risk level one is warranted, this issue was not preserved for appellate review.
The decision and order of this court entered herein on June 2, 2009 are hereby recalled and vacated ( see motion decided simultaneously herewith).
Rudolph, P.J., and Molia, J., concur.
Scheinkman, J., taking no part.