Appeal from an order of the Supreme Court, Monroe County (Frank P. Geraci, Jr., A.J.), entered December 16, 2011.
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: CENTRA, J.P., FAHEY, CARNI, WHALEN, AND MARTOCHE, JJ.
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 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.). To the extent that defendant contends that Supreme Court improperly assessed 15 points for his history of drug or alcohol abuse as recommended in the risk assessment instrument (RAI) prepared by the Board of Examiners of Sex Offenders, we reject that contention (see People v Zimmerman, 101 AD3d 1677, 1678). Even assuming, arguendo, that the court erred in assessing 15 points with respect to that risk factor, we note that defendant would nevertheless have been assessed 110 points under the RAI, which is still a presumptive level three risk. Contrary to his further contention, we conclude that defendant failed to establish his entitlement to a downward departure from the presumptive risk level inasmuch as he failed to present the requisite clear and convincing evidence of special circumstances to warrant such a departure (see People v Marks, 31 AD3d 1142, 1143, lv denied 7 NY3d 715; People v McDaniel, 27 AD3d 1158, 1159, lv denied 7 NY3d 703). Entered: May 3, 2013 Frances E. Cafarell Clerk of the Court
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