| People v Quinones |
| 2012 NY Slip Op 00571 [91 AD3d 1302] |
| Jnury 31, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v DavidQuinones, Appellant. |
Appeal from an order of the Supreme Court, Monroe County (Frank P. Geraci, Jr., A.J.),entered August 10, 2010. The order determined that defendant is a level three risk pursuant to theSex Offender Registration Act. It is hereby ordered that the order so appealed from is unanimously affirmed withoutcosts. Memorandum: We reject the contention of defendant that Supreme Court erred indetermining that he is a level three risk pursuant to the Sex Offender Registration Act(Correction Law 168 et seq.). Defendant failed to request a downward departure to a level tworisk, and thus he failed to preserve for our review his contention that the court erred in failing toafford him that downward departure from his presumptive level three risk (see People v Ratcliff,53 AD3d 1110 [2008], lv denied 11 NY3d 708 [2008]). In any event, we conclude that"defendant failed to present clear and convincing evidence of special circumstances justifying adownward departure" (People v McDaniel, 27 AD3d 1158, 1159 [2006], lv denied 7 NY3d 703[2006]; see People v Cummings, 81 AD3d 1261 [2011], lv denied 16 NY3d 711 [2011]). Insofar as defendant contends that the court erred in treating his prior youthful offenderadjudication as a conviction pursuant to risk factor nine in the criminal history section of the riskassessment instrument (RAI), that contention is without merit. "As used [in the criminal historysection of the RAI], the term 'crime' includes criminal convictions, youthful offenderadjudications and juvenile delinquency findings. The Board [of Examiners of Sex Offenders]concluded that these determinations are reliable indicators of wrongdoing and, therefore, shouldbe considered in assessing an offender's likelihood of reoffense and danger to public safety" (SexOffender Registration Act: Risk Assessment Guidelines and Commentary, at 6 [2006]; seePeople v Wilkins, 77 AD3d 588 [2010], lv denied 16 NY3d 703 [2011]; People v Irving, 45AD3d 1389, 1389-1390 [2007], lv denied 10 NY3d 703 [2008]). Present Smith, J.P., Peradotto,Lindley, Sconiers and Gorski, JJ.