| People v Latimore |
| 2008 NY Slip Op 03904 [50 AD3d 1604] |
| April 25, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v JamesLatimore, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Nancy A. Gilligan of counsel), forrespondent.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: On appeal from an order determining that he is a level three risk pursuant tothe Sex Offender Registration Act (Correction Law § 168 et seq.), defendantcontends that Supreme Court violated his due process rights by relying on the case summaryprepared by the Board of Examiners of Sex Offenders. We cannot agree with the People thatdefendant waived his contention, inasmuch as he objected to the procedures used in generatingthe case summary (cf. People vWragg, 41 AD3d 1273 [2007], lv denied 9 NY3d 809 [2007]). We conclude,however, that defendant's contention lacks merit (cf. People v David W., 95 NY2d 130,138 [2000]). Defendant was presumptively classified as a level two risk based upon the total riskfactor score on the risk assessment instrument, and he further contends that the court erred inassessing additional points under risk factors seven through nine, resulting in a level threeclassification. Even assuming, arguendo, that the court erred in assessing various points, weconclude that the court's upward departure to a level three risk is based on clear and convincingevidence of aggravating factors not adequately taken into account by the risk assessmentguidelines (see People v Abdullah,31 AD3d 515, 516 [2006]). Present—Hurlbutt, J.P., Smith, Fahey, Green and Pine, JJ.