| People v Herron |
| 2009 NY Slip Op 00664 [59 AD3d 414] |
| February 3, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Frederick Herron, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Mark A. Garretto, Lois C. Valerio, andAnthony J. Servino of counsel), for respondent.
Appeal by the defendant from an order of the County Court, Westchester County (R.Bellantoni, J.), entered September 14, 2007, which, after a hearing, designated him a level threesex offender pursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
The hearing court is not bound by a recommendation made by the Board of Examiners ofSex Offenders (hereinafter the Board). In the exercise of its discretion, the hearing court maydepart from the Board's recommendation and determine the defendant's risk level based on therecord before it (see People v Taylor,48 AD3d 775, 776 [2008]; People v Walker, 47 AD3d 692, 693-694 [2008]).
The defendant does not challenge the Board's determination to assess 110 points based onvarious risk factors, which the court found were established by clear and convincing evidence.The defendant contends that the totality of the circumstances of this case and his backgroundestablish there was an overassessment of points in some categories, that such overassessmentwarranted a downward departure to a risk level two, and the County Court improvidentlyexercised its discretion in denying a downward departure.
Contrary to the defendant's contention, the 11-year age difference between the defendant andhis 15-year-old victim was significant. The circumstances of the statutory rape committed by thedefendant did not result in an overassessment and do not warrant a downward departure (see People v Bowens, 55 AD3d809 [2008]; People v Foy, 49AD3d 835 [2008]). There also was no overassessment of points for the defendant's historyof drug abuse (see People v Goodwin,49 AD3d 619 [2008]; People vWright, 37 AD3d 797 [2007]), nor any overassessment based on the nature of thedefendant's criminal history.[*2]
The defendant failed to present clear and convincingevidence of special circumstances that would warrant a downward departure from thepresumptive level three classification established by the proof at the hearing (see People v Garcia, 56 AD3d 539[2008]; People v Branigan, 56AD3d 538 [2008]). The County Court appropriately determined the defendant to be a levelthree sex offender and providently exercised its discretion in denying the request for a downwarddeparture. Rivera, J.P., Angiolillo, Dickerson and Chambers, JJ., concur.