| People v Greene |
| 2012 NY Slip Op 01976 [93 AD3d 1230] |
| March 16, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Robert E.Greene, Appellant. |
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Appeal from an order of the Genesee County Court (Robert C. Noonan, J.), dated January 5,2011. The order determined that defendant is a level three risk pursuant to the Sex OffenderRegistration Act.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: We reject defendant's contention that County Court improvidently exercisedits discretion in determining that he is a level three risk pursuant to the Sex Offender RegistrationAct (Correction Law § 168 et seq.). Defendant was presumptively classified as alevel three risk pursuant to the risk assessment instrument, and we conclude based on the recordbefore us that defendant failed to present clear and convincing evidence of special circumstancesto warrant a downward departure (seePeople v Burgos, 32 AD3d 1289 [2006], lv denied 8 NY3d 801 [2007]; People v Marks, 31 AD3d 1142,1143 [2006], lv denied 7 NY3d 715 [2006]). Defendant, who was 20 years old at the timeof the underlying offenses, engaged in sexual activity with a 13-year-old female he initially metover the Internet. Defendant mistakenly relies on cases in which this Court concluded that adownward departure from the presumptive risk level was warranted where there was no evidenceof forcible compulsion and the defendant was not appreciably older than the victim (see People v Goossens, 75 AD3d1171, 1171-1172 [2010]; People vBrewer, 63 AD3d 1604, 1605 [2009]; People v Weatherley, 41 AD3d 1238, 1238-1239 [2007]; seegenerally Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at4-5 [2006]). This case is distinguishable in part because of defendant's extensive criminal history,which includes two prior convictions for criminal contempt in the second degree. In addition,defendant was on probation for attempted burglary in the second degree at the time he committedthe underlying offenses. After defendant committed and was charged with the sex offenses atissue, he was charged with additional counts of criminal contempt in the second degree forcommunicating with the victim, for whom the court had issued an order of protection. We agreewith the court that "defendant's criminal history evinces a lack of restraint and a willingness toplace his self-interest above that of society which warrants the highest level of notification tovulnerable populations . . . ." Present—Centra, J.P., Fahey, Lindley, Sconiersand Martoche, JJ.