| People v Jefferson |
| 2010 NY Slip Op 05064 [74 AD3d 1756] |
| June 11, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v DonnellJefferson, 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, 2008. 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: Defendant appeals from an order determining that he is a level two riskpursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.).Contrary to the contention of defendant, County Court's assessment of 10 points under the riskfactor for his conduct while confined is supported by evidence establishing that defendant'srecord while incarcerated included at least three tier III violations and more than 10 tier IIviolations (see People v Catchings,56 AD3d 1181 [2008], lv denied 12 NY3d 701 [2009]; People v Peterson, 8 AD3d 1124[2004], lv denied 3 NY3d 607 [2004]; Sex Offender Registration Act: Risk AssessmentGuidelines and Commentary, at 16 [2006]). In any event, we note that defendant's presumptiveclassification as a level two risk would not change even if the court had not assessed those 10points (see generally People vClark, 66 AD3d 1366 [2009], lv denied 13 NY3d 713 [2009]).
Defendant failed to preserve for our review his further contention that he was entitled to adownward departure from his presumptive risk level (see id.; People v Ratcliff, 53 AD3d 1110[2008], lv denied 11 NY3d 708 [2008]). "In any event, that contention lacks meritinasmuch as defendant failed to present clear and convincing evidence of special circumstancesjustifying a downward departure" (People vRegan, 46 AD3d 1434, 1435 [2007]). Present—Scudder, P.J., Centra, Carni, Sconiersand Pine, JJ.