Opinion
KS 02-00598.
October 1, 2004.
Appeal from an order of the Erie County Court (Timothy J. Drury, J.), entered March 18, 2003. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.
Before: Pigott, Jr., P.J., Green, Hurlbutt, Kehoe and Martoche, JJ.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: Defendant appeals from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.). The Board of Examiners of Sex Offenders recommended that defendant be classified as a level three risk based on its finding concerning the existence of an "override" factor, i.e., that defendant had "a prior felony conviction for a sex crime," and it further recommended that no "departure from the presumptive risk level is warranted" ( see generally People v. David W., 95 NY2d 130, 135; People v. Brown, 302 AD2d 919, 920; People v. Scott, 288 AD2d 763, 764-765). It was within County Court's discretion to adopt that recommendation based on the clear and convincing evidence of the supporting facts, particularly including defendant's prior felony conviction ( see Correction Law § 168-n; People v. Barnwell, 6 AD3d 1146; People v. Billingsley, 6 AD3d 1170; People v. Brown, 302 AD2d at 920; see generally People v. Warwick, 5 AD3d 1050; People v. Thomas, 307 AD2d 759, 760).