| People v Smith |
| 2013 NY Slip Op 05408 [108 AD3d 1215] |
| July 19, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v BryanSmith, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of counsel), forrespondent.
Appeal from an order of the Erie County Court (Kenneth F. Case, J.), entered August14, 2012. The order determined that defendant is a level three risk pursuant to the SexOffender Registration Act.
It is hereby ordered that the order so appealed from is unanimously affirmed withoutcosts.
Memorandum: On appeal from an order determining that he is a level three riskunder the Sex Offender Registration Act (Correction Law § 168 et seq.),defendant contends that he was denied due process because he did not receive timelynotification that "his . . . case [was] under review and that he. . . [was] permitted to submit to the [Board of Examiners of Sex Offenders(Board)] any information relevant to the review" (§ 168-n [3]). We reject thatcontention. Although the People did not timely notify defendant that his case was underreview, County Court "offered defendant an adjournment and thus afforded defendant ameaningful opportunity" to prepare and submit mitigating evidence (People v Jordan, 31 AD3d1196, 1196 [2006], lv denied 7 NY3d 714 [2006]; see People v Myers, 87 AD3d1286, 1287 [2011], lv denied 18 NY3d 802 [2011]). Contrary to defendant'sfurther contention, the court properly assessed 15 points for his history of drug or alcoholabuse as recommended in the risk assessment instrument. The court's determination toaccept that recommendation is supported by the requisite clear and convincing evidence(see generally § 168-n [3]).
Also contrary to defendant's contention, he "failed to present clear and convincingevidence of special circumstances justifying a downward departure" (People v McDaniel, 27 AD3d1158, 1159 [2006], lv denied 7 NY3d 703 [2006]). Defendant's "significanteducational and rehabilitative efforts while confined, which he claims have reduced hislikelihood of reoffending[,] . . . already were taken into account by theguidelines, as evidenced by the scoring on the risk assessment instrument for. . . conduct while confined (risk factor 13)" (People v Kotzen, 100 AD3d1162, 1163 [2012], lv denied 20 NY3d 860 [2013]). Defendant alsocontends that his age and health are mitigating factors warranting a downward departure,but we conclude that he failed to establish that he has "physical conditions that minimize[the] risk of re-offense" (Correction Law § 168-l [5] [d]; see People v Curthoys, 77AD3d 1215, 1217 [2010]). Present—Scudder, P.J., Peradotto, Lindley,Whalen and Martoche, JJ.