Opinion
KA 02-00620
July 3, 2003.
Appeal from an order of Genesee County Court (Noonan, J.), entered February 4, 2002, which determined that defendant is a level three risk under the Sex Offender Registration Act.
GARY A. HORTON, PUBLIC DEFENDER, BATAVIA (BRIDGET L. FIELD OF COUNSEL), FOR DEFENDANT-APPELLANT.
LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: WISNER, J.P., HURLBUTT, BURNS, LAWTON, 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 attack on a coworker in December 1998, and was sentenced to an indeterminate term of imprisonment of 2 to 4 years. The Board of Examiners of Sex Offenders (Board) recommended that, upon his release from prison, defendant be determined to be a level three risk pursuant to the Sex Offender Registration Act (Correction Law 168 et seq.), and County Court adopted the Board's recommendation. Contrary to defendant's contention, the court's determination is supported by clear and convincing evidence ( see generally People v. Mallory, 293 A.D.2d 881; Matter of Vandover v. Czajka, 276 A.D.2d 945, 947). Although defendant's point total on the Board's Risk Assessment Instrument was 75, presumptively placing defendant in the classification of a level two risk ( see People v. David W., 95 N.Y.2d 130, 135), the court properly determined that the Board's risk assessment score did not fully take into account the number and nature of defendant's prior misdemeanor sex offenses and a prior violent felony conviction ( see 168-n [3]; see also People v. Bottisti, 285 A.D.2d 841; People v. Harris, 178 Misc.2d 858, 860-861).