PEOPLE v. PERKINS (2006)

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 A.D.3d 956, 782 N.Y.S.2d 205, lv. denied 4 N.Y.3d 702, 790 N.Y.S.2d 648, 824 N.E.2d 49).   We conclude that the court's determination is supported by clear and convincing evidence (see People v. Sutton, 19 A.D.3d 1045, 796 N.Y.S.2d 290, lv. denied 5 N.Y.3d 709, 803 N.Y.S.2d 30, 836 N.E.2d 1153;  People v. Barnwell, 6 A.D.3d 1146, 1147, 775 N.Y.S.2d 658, lv. denied 3 N.Y.3d 604, 784 N.Y.S.2d 6, 817 N.E.2d 824).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: