Opinion
No. KA 05-01405.
December 21, 2007.
Appeal from an order of the Supreme Court, Monroe County (Frank P. Geraci, Jr., A.J.), entered June 3, 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 (NANCY A. GILLIGAN OF COUNSEL), FOR RESPONDENT.
Present: Gorski, J.P., Martoche, Lunn, Fahey and Pine, JJ.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: On appeal from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.), defendant contends that, because the total risk factor score on the risk assessment instrument was 110, the lowest score required for a level three sex offender, Supreme Court abused its discretion in denying his request for a downward departure based upon his purported risk to reoffend. We reject that contention ( see People v Cruz, 30 AD3d 1042, lv denied 7 NY3d 712). Defense counsel's comments to the court with respect to defendant's risk to reoffend did not constitute "the requisite clear and convincing evidence of special circumstances justifying a downward departure" ( id.; see also People v Perkins, 32 AD3d 1241, lv denied 7 NY3d 718).