People v. Smith

Appeal from an order of the Supreme Court, Monroe County (Frank E Geraci, Jr., A.J.), entered June 3, 2005. The order determined that defendant is a level three risk pursuant to 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: On appeal from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.), defendant contends that, because the total risk factor score on the risk assessment instrument was 110, the lowest score required for a level three sex offender, Supreme Court abused its discretion in denying his request for a downward departure based upon his purported risk to reoffend. We reject that contention (see People v Cruz, 30 AD3d 1042 [2006], lv denied 7 NY3d 712 [2006]). Defense counsel’s comments to the court with respect to defendant’s risk to reoffend did not constitute “the requisite clear and convincing evidence of special circumstances justifying a downward departure” (id.; see also People v Perkins, 32 AD3d 1241 [2006], lv denied 7 NY3d 718 [2006]). Present—Gorski, J.P., Martoche, Lunn, Fahey and Pine, JJ.