QUINONES, DAVID, PEOPLE v ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
54
KA 10-02010
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND GORSKI, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
DAVID QUINONES, DEFENDANT-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF
COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.
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 the Sex Offender
Registration Act.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: We reject the contention of defendant that Supreme
Court erred in determining 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 two risk,
and thus he failed to preserve for our review his contention that the
court erred in failing to afford him that downward departure from his
presumptive level three risk (see People v Ratcliff, 53 AD3d 1110, lv
denied 11 NY3d 708). In any event, we conclude that “defendant failed
to present clear and convincing evidence of special circumstances
justifying a downward departure” (People v McDaniel, 27 AD3d 1158,
1159, lv denied 7 NY3d 703; see People v Cummings, 81 AD3d 1261, lv
denied 16 NY3d 711).
Insofar as defendant contends that the court erred in treating
his prior youthful offender adjudication as a conviction pursuant to
risk factor nine in the criminal history section of the risk
assessment instrument (RAI), that contention is without merit. “As
used [in the criminal history section of the RAI], the term ‘crime’
includes criminal convictions, youthful offender adjudications and
juvenile delinquency findings. The Board [of Examiners of Sex
Offenders] concluded that these determinations are reliable indicators
of wrongdoing and, therefore, should be considered in assessing an
offender’s likelihood of reoffense and danger to public safety” (Sex
Offender Registration Act: Risk Assessment Guidelines and Commentary,
-2- 54
KA 10-02010
at 6 [2006]; see People v Wilkins, 77 AD3d 588, lv denied 16 NY3d 703;
People v Irving, 45 AD3d 1389, 1389-1390, lv denied 10 NY3d 703).
Entered: January 31, 2012 Frances E. Cafarell
Clerk of the Court