| People v McGrigg |
| 2009 NY Slip Op 08384 [67 AD3d 1426] |
| November 13, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Alfred K.McGrigg, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from an order of the Erie County Court (Sheila A. DiTullio, J.), entered September 4,2008. The order determined that defendant is a level two risk pursuant to the Sex OffenderRegistration 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 two riskpursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.)following a redetermination hearing conducted upon defendant's request, in accordance withDoe v Pataki (481 F3d 69 [2007]). We reject the contention of defendant that, because hehad been released from imprisonment for 10 years at the time of the redetermination hearing,County Court erred in assessing 15 points against him for being released from prison withoutsupervision (see People v Ferrara,38 AD3d 1302 [2007], lv denied 8 NY3d 815 [2007]; see generally SexOffender Registration Act: Risk Assessment Guidelines and Commentary, at 17 [2006]).Contrary to defendant's further contention, "the court did not abuse its discretion in determiningthat the fact that defendant had not been charged with a sex offense since his release fromimprisonment on the underlying offense did not warrant a downward departure" (People v Perkins, 32 AD3d 1241,1241 [2006], lv denied 7 NY3d 718 [2006]). Present—Martoche, J.P., Smith,Fahey, Carni and Pine, JJ.