People v. Foster , 787 N.Y.S.2d 799 ( 2004 )

Appeal from an order of the Ontario County Court (Craig J. Doran, J.), entered December 11, 2003. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum:

Defendant appeals from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.). Defendant contends that County Court erred in denying his request for a downward departure from the presumptive risk level because one of his prior convictions upon which his presumptive risk level was calculated was for endangering the welfare of a child (Penal Law § 260.10) and did not involve events of a sexual nature. We reject that contention. “It was within the court’s discretion to [classify defendant as a level three risk] . . . based upon clear and convincing evidence of the facts in support thereof’ (People v Billingsley, 6 AD3d 1170, 1170 [2004], lv denied 3 NY3d 605 [2004]; see Correction Law § 168-n [3]; People v Guaman, 8 AD3d 545 [2004]). Present—Pigott, Jr., P.J, Pine, Kehoe, Gorski and Martoche, JJ.