| People v Clark |
| 2009 NY Slip Op 06923 [66 AD3d 1366] |
| October 2, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Willie Clark,Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Nancy A. Gilligan of counsel), forrespondent.
Appeal from an order of the Monroe County Court (Frank P. Geraci, Jr., J.), enteredSeptember 10, 2007. The order determined that defendant is a level two risk pursuant to the SexOffender Registration Act.
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 two risk pursuant tothe Sex Offender Registration Act (Correction Law § 168 et seq.), defendantcontends that County Court's assessment of 15 points under risk factor nine is not supported bythe requisite clear and convincing evidence and thus he was not properly classified as a level tworisk (see § 168-n [3]). We reject that contention. The record establishes that thecourt properly considered the case summary, which constitutes reliable hearsay, in determiningdefendant's risk level (see People vWragg, 41 AD3d 1273 [2007], lv denied 9 NY3d 809 [2007]; People v Vacanti, 26 AD3d 732[2006], lv denied 6 NY3d 714 [2006]). In any event, we note that defendant'spresumptive classification as a level two risk would not change even if the court had assessedonly the five points that defendant contends should have been assessed, rather than the 15 pointsassessed (see generally People vFerrara, 38 AD3d 1302 [2007], lv denied 8 NY3d 815 [2007]; People v Lujan, 34 AD3d 1346[2006], lv denied 8 NY3d 805 [2007]).
Defendant failed to preserve for our review his contention that he was entitled to adownward departure from his presumptive risk level (see People v Ratcliff, 53 AD3d 1110 [2008], lv denied 11NY3d 708 [2008]; People v Regan,46 AD3d 1434, 1435 [2007]). In any event, that contention lacks merit inasmuch as"defendant failed to present clear and convincing evidence of special circumstances justifying adownward departure" (Regan, 46 AD3d at 1435). Present—Martoche, J.P., Smith,Peradotto, Carni and Green, JJ.