780 N.Y.S.2d 698 | N.Y. App. Div. | 2004
Appeal from an order of the Ontario County Court (James R. Harvey, J.), entered April 9, 2003. The order designated defendant a level two offender under 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 designating him a level two offender under the Sex Offender Registration Act (Correction Law § 168 et seq.). The point total on the risk assessment instrument (RAI) prepared by the Board of Examiners of Sex Offenders (Board) resulted in the presumptive classification of defendant as a level one offender, and the Board determined that a departure from that presumptive risk level was not warranted. County Court, “however, is not bound by the recommendation of the Board and, in the exercise of its discretion, may depart from that recommendation and determine the sex offender’s risk level based upon the facts and circumstances that appear in the record” (Matter of New York State Bd. of Examiners of Sex Offenders v Ransom, 249 AD2d 891, 891-892 [1998]). The record supports the court’s determination that an upward departure from the presumptive risk level classification was warranted based upon aggravating factors not adequately taken into account by the RAI (see People v Bottisti, 285 AD2d 841, 842 [2001]; People v Marinconz, 178 Misc 2d 30, 39 [1998]). The facts contained in the case summary, which were not disputed by defendant, constitute clear
