| People v Barnett |
| 2006 NYSlipOp 06900 |
| September 28, 2006 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Alan G. Barnett, Appellant. |
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Carpinello, J. Appeal from an order of the County Court of Broome County (Smith, J.), entered June 7, 2005, which classified defendant as a risk level II sex offender pursuant to the Sex Offender Registration Act.
Defendant was convicted, upon his plea of guilty, of attempted sodomy in the first degree (294 AD2d 715 [2002], lv denied 98 NY2d 766 [2002]). In anticipation of his release from prison, the Board of Examiners of Sex Offenders evaluated defendant, completed a risk assessment instrument and recommended that he be classified as a risk level II violent sex offender. At a hearing, County Court adopted the Board's recommendation and defendant now appeals.
At the hearing, defendant argued, among other things, that the 10 points assessed against him by the Board for failure to accept responsibility and the 10 points assessed for unsatisfactory conduct while confined were improper. After hearing defendant's arguments, County Court noted that even if it agreed with defendant and reduced his score by 20 points, defendant's score would still place in him in the risk level II category. Although County Court provided defendant an opportunity to present evidence of mitigating factors to support a downward modification, defendant did not do so and we find no such evidence in the record. Consequently, as the case summary and the presentence investigation report provide clear and convincing evidence to [*2]support the risk level classification, it cannot be said that County Court abused its discretion in classifying defendant as a risk level II sex offender (see People v Dickison, 24 AD3d 980, 981 [2005], lv denied 6 NY3d 709 [2006]; People v Hunt, 17 AD3d 713, 714 [2005], lv denied 5 NY3d 763 [2005]).
Mercure, J.P., Crew III, Rose and Kane, JJ., concur. Ordered that the order is affirmed, without costs.