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The People of the State of New York, Respondent v. Richard Odum

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


December 21, 2012

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
RICHARD ODUM, DEFENDANT-APPELLANT.

Appeal from an order of the Monroe County Court (Vincent M. Dinolfo, J.), entered May 31, 2011.

People v Odum

Released on December 21, 2012

Appellate Division, Fourth Department

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.

PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND MARTOCHE, JJ.

The order denied the appeal of defendant from an order of Gates Town Court (Peter P. Pupatelli, J.), dated October 4, 2010, determining that defendant is a level two risk pursuant to the Sex Offender Registration Act.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Defendant appeals from an order of Monroe County Court that affirmed an order of Gates Town Court determining that he is a level two risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.). We reject defendant's contention that he was an acquaintance of the victim and that the People therefore failed to establish the basis for the assessment of 20 points under risk factor 7, i.e., his relationship with the victim. The evidence established that "the victim met defendant for the first time [shortly before] the day of the incident, did not know his legal name, and apparently knew no other personal information about him. Thus, the court properly concluded that defendant was a stranger to the victim' " (People v Gaines, 39 AD3d 1212, 1212-1213, lv denied 9 NY3d 803).

Assuming, arguendo, that, by seeking a downward departure from his presumptive risk level on a different ground, defendant preserved for our review his contention that a downward departure to level one is warranted because of his lack of contact with the criminal justice system since the time of the offense, we conclude that his contention is without merit. Defendant failed "to present clear and convincing evidence of special circumstances justifying a downward departure" (People v Regan, 46 AD3d 1434, 1435; see People v Bennett, 90 AD3d 1664, 1664, lv denied 18 NY3d 810; People v Ratcliff, 53 AD3d 1110, 1110, lv denied 11 NY3d 708). Entered: December 21, 2012 Frances E. Cafarell Clerk of the Court

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