People v. Barnwell

Appeal from an order of the Monroe County Court (Frank E Geraci, Jr., J.), entered February 12, 2003. The order designated defendant as a level three sex offender under the Sex Offender Registration Act.

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 designating him a level three offender under the Sex Offender Registration Act (Correction Law § 168 et seq.). The total risk factor score on *1147the risk assessment instrument (RAI) prepared by the Board of Examiners of Sex Offenders (Board) presumptively classified defendant as a level two offender, but the Board recommended an upward departure to level three based upon factors not adequately reflected in the RAI. County Court agreed with the Board that an upward departure from the presumptive risk level classification was warranted (see People v Delmarle, 2 AD3d 1446 [2003]; Matter of O’Brien v State of New York Div. of Probation & Correctional Servs., 263 AD2d 804, 806 [1999], lv denied 94 NY2d 758 [1999]), and we conclude that the court’s designation of defendant as a level three offender is supported by clear and convincing evidence (see Correction Law § 168-n [3]; People v Bottisti, 285 AD2d 841, 841-842 [2001]). We have considered the contention raised in defendant’s pro se supplemental brief and conclude that it lacks merit. Present—Pigott, Jr., PJ., Green, Wisner, Scudder and Gorski, JJ.