People v. Cruz

30 A.D.3d 1042, 815 N.Y.S.2d 877

Opinion

Appeal from an order of the Erie County Court (Sheila A. DiTullio, J.), dated January 25, 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 County Court erred in determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.). The People met their burden of proving the facts supporting that risk level classification by clear and convincing evidence (see § 168-n [3]; People v McDaniel, 27 AD3d 1158 [2006]; see also People v Vacanti, 26 AD3d 732, 733 [2006]; People v Vaughn, 26 AD3d 776 [2006]), and defendant failed to present the requisite clear and convincing evidence of special circumstances justifying a downward departure (see McDaniel, 27 AD3d 1158 [2006]; Vaughn, 26 AD3d at 777). Present— Pigott, Jr., PJ., Kehoe, Gorski, Green and Pine, JJ.