27 A.D.3d 1158
N.Y. App. Div.
2006

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v JAMES MCDANIEL, Appellant.

Supreme Court, Appellate Division, Fourth Department, New York

810 N.Y.S.2d 723

Appeal from an order of the Supreme Court, Erie County (Penny M. Wolfgang, J.), entered March 4, 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: 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.). Even assuming, arguendo, that defendant‘s challenges to the points assigned by the Board of Examiners of Sex Offenders (Board) have merit and that the score should be reduced accordingly, we would nevertheless conclude that, even with those reductions, the score remains within the range of a level three risk (see generally People v Noriega, 26 AD3d 767 [2006]). In any event, we conclude that the People met their “burden of proving the facts supporting the risk level classification sought by clear and convincing evidence” (People v Dort, 18 AD3d 23, 24 [2005], lv denied 4 NY3d 885 [2005]; see People v Brown, 7 AD3d 831, 832 [2004]). Contrary to defendant‘s further contention, “the facts contained in the case summary, which were not in dispute and upon which the court relied, provided the required evidentiary support” to establish the number of victims (People v Dorato, 291 AD2d 580, 581 [2002]). Finally, we reject defendant‘s contention that the court should have departed from the recommendation of the Board inasmuch as defendant failed to present clear and convincing evidence of special circumstances justifying a downward departure (see People v Douglas, 18 AD3d 967, 968 [2005], lv denied 5 NY3d 710 [2005]; see also People v Arotin, 19 AD3d 845, 847 [2005]). Present—Pigott, Jr., P.J., Scudder, Gorski, Martoche and Green, JJ.