| People v Williamson |
| 2010 NY Slip Op 04480 [73 AD3d 1398] |
| May 27, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v KeithWilliamson, Appellant. |
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Mercure, J. Appeal from an order of the County Court of Broome County (Smith, J.), enteredApril 29, 2009, which classified defendant as a risk level three sex offender pursuant to the SexOffender Registration Act.
Defendant pleaded guilty in 2004 to sexual abuse in the first degree and was sentenced to aterm of imprisonment. In anticipation of his release from prison, the Board of Examiners of SexOffenders prepared a risk assessment instrument that presumptively classified defendant as a risklevel two sex offender. However, based upon the existence of an override factor—namely,defendant's 1997 conviction of, insofar as is relevant here, sexual abuse in the firstdegree—the Board recommended that he be classified as a risk level three sex offender.County Court adopted the Board's recommendation and this appeal ensued.
Preliminarily, defendant raised no objection to the manner in which the hearing wasconducted and, hence, has failed to preserve his due process claims for our review (see People v McLean, 55 AD3d973, 974 [2008]). We reach a similar conclusion regarding defendant's assertion that CountyCourt should have adjourned the hearing. Defendant not only failed to request an adjournment(see People v Ebert, 18 AD3d963, 964 [2005]), but refused County Court's offer of one, stating, "We're just going tofinish this today."[*2]
Turning to the merits, defendant does not challenge thescoring on the risk assessment instrument, and his prior felony conviction for a sex crime"constituted an applicable override factor resulting in a presumptive risk level III assessment"(People v Winney, 43 AD3d1239, 1239 [2007]). Inasmuch as the record is devoid of clear and convincing evidence ofmitigating circumstances, a downward departure from the presumptive risk level classification isnot warranted (see People vJohnson, 46 AD3d 1032, 1033 [2007]; People v Pride, 37 AD3d 957, 958 [2007], lv denied 8NY3d 812 [2007]; People v Mabb,32 AD3d 1135, 1135 [2006]). Accordingly, County Court's order classifying defendant as arisk level three sex offender is affirmed.
Cardona, P.J., Lahtinen, Malone Jr. and Egan Jr., JJ., concur. Ordered that the order isaffirmed, without costs.