Opinion
No. KA 06-03567.
June 6, 2008.
Appeal from an order of the Supreme Court, Monroe County (Frank P. Geraci, Jr., A.J.), entered October 12, 2006. The order determined that defendant is a level two risk pursuant to the Sex Offender Registration Act.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (NANCY A. GILLIGAN OF COUNSEL), FOR RESPONDENT.
Present: Hurlbutt, J.P., Lunn, Fahey, Peradotto and Pine, JJ.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Defendant appeals from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.). Defendant was presumptively classified at that risk level after Supreme Court reduced the total risk factor score on the risk assessment instrument by 20 points. We reject the contention of defendant that the court abused its discretion in denying his request for a further downward departure based on his postrelease behavior ( see People v Perkins, 32 AD3d 1241, lv denied 7 NY3d 718). Defendant failed to present clear and convincing evidence of the existence of special circumstances to warrant a downward departure from the presumptive risk level ( see People v Marks, 31 AD3d 1142, lv denied 7 NY3d 715; People v Hamelinck, 23 AD3d 1060).