Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on February 7, 2012
Saxe, J.P., Friedman, Catterson, Freedman, Manzanet-Daniels, JJ.
Orders, Supreme Court, Bronx County (Megan Tallmer, J.), entered on or about April 14, 2009, which adjudicated defendant a level two sex offender under the Sex Offender Registration Act (Correction Law art 6-C), unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the adjudication to that of a level one sex offender, and otherwise affirmed, without costs. Appeal from order, same court and Justice, entered on or about September 14, 2009, which, upon reargument, adhered to the prior decision, unanimously dismissed, without costs, as academic.
The court erred in initially designating defendant a level three offender rather than a level two offender. The record at best, only supports the level two classification. We exercise our independent discretion to grant defendant a downward departure to level one (see People v Johnson, 11 NY3d 416, 421 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 7, 2012
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