People v. Billingsley

6 A.D.3d 1170, 775 N.Y.S.2d 652, 2004 N.Y. App. Div. LEXIS 6261

Opinion

Appeal from an order of the Supreme Court, Erie County (Joseph S. Forma, J.), entered July 24, 2000. 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 was convicted, upon pleas of guilty, of attempted sexual abuse in the first degree (Penal Law §§ 110.00, 130.65 [1]) and endangering the welfare of a child (§ 260.10 [1]) arising from two separate incidents involving different victims. Supreme Court properly adopted the recommendation of the Board of Examiners of Sex Offenders (Board) in determining defendant’s risk level. Although defendant’s final score of 85 on the risk assessment instrument placed defendant in the level two risk category, the Board nevertheless recommended that he be assessed at the level three risk category based on his conviction of endangering the welfare of a child (see generally People v Roland, 292 AD2d 271, 272 [2002], lv denied 98 NY2d 614 [2002]). It was within the court’s discretion to adopt that recommendation, based upon clear and convincing evidence of the facts in support thereof (see Correction Law § 168-n [3]; People v Carlton, 307 AD2d 763 [2003]). Present—Pigott, Jr., PJ., Pine, Scudder, Gorski and Hayes, JJ.