Opinion
KA 02-01545.
February 11, 2004.
Appeal from an order of the Erie County Court (Michael F. Pietruska, J.), entered March 1, 2002. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF COUNSEL), FOR DEFENDANT-APPELLANT.
MARK STEVENS, DEFENDANT-APPELLANT PRO SE.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (PAUL J. WILLIAMS, III, OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: PIGOTT, JR., P.J., PINE, HURLBUTT, KEHOE, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: Defendant was convicted upon his plea of guilty of attempted sexual abuse in the first degree (Penal Law §§ 110.00, 130.65), stemming from his having subjected a 14-year-old girl to sexual contact by forcible compulsion after making her acquaintance on an adult telephone "chat line." County Court sentenced defendant to an indeterminate term of imprisonment of 1 1/3 to 4 years. The Board of Examiners of Sex Offenders (Board) recommended that, upon his release from prison, defendant be classified as a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.). Contrary to defendant's contention, the court's determination adopting the Board's recommendation is supported by clear and convincing evidence ( see generally People v. Thomas, 307 A.D.2d 759, 760; People v. Mallory, 293 A.D.2d 881; Matter of Vandover v. Czajka, 276 A.D.2d 945, 947). Although defendant was presumptively classified as a level two risk based on his point total on the Board's Risk Assessment Instrument ( see People v. David W., 95 N.Y.2d 130, 135), the court properly adopted the Board's recommendation of an upward departure to a level three risk. Here, the presumptive risk level did not fully take into account the number and nature of defendant's prior crimes or the fact that defendant acknowledged herein that he had made the acquaintance of another 14-year-old girl on the "chat line," met her in person, and had conversations with her of a sexual nature, including telling her of his sexual activity with the victim in this case (see § 168-n [3]; see also People v. Bottisti, 285 A.D.2d 841; People v. Harris, 178 Misc.2d 858, 860-861). We have examined the remaining contentions of defendant in his pro se supplemental brief and conclude that they are lacking in merit.