People v. Perkins

Appeal from an order of the Supreme Court, Monroe County (John J. Brunetti, A.J.), entered February 16, 2005. 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 under the Sex Offender Registration Act (Correction Law § 168 et seq.). Although Supreme Court reduced the total risk factor score on the risk assessment instrument by 30 points, it denied defendant’s request for a further downward departure to a level two risk. Contrary to defendant’s contention, the court did not abuse its discretion in determining that the fact that defendant had not been charged with a sex offense since his release from imprisonment on the underlying offense did not warrant a downward departure (see generally § 168-n [3]; People v Boan, 11 AD3d 956 [2004], lv denied 4 NY3d 702 [2004]). We conclude that the court’s determination is supported by clear and convincing evidence (see People v Sutton, 19 AD3d 1045 [2005], lv denied 5 NY3d 709 [2005]; People v Barnwell, 6 AD3d 1146, 1147 [2004], lv denied 3 NY3d 604 [2004]). Present — Pigott, Jr., P.J., Hurlbutt, Scudder, Kehoe and Green, JJ.