PEOPLE v. FOSTER (2004)

Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Jerome FOSTER, Defendant-Appellant.

Decided: December 30, 2004

PRESENT: PIGOTT, JR., P.J., PINE, KEHOE, GORSKI, AND MARTOCHE, JJ.

Tyson Blue, Lyons, for Defendant-Appellant. R. Michael Tantillo, District Attorney, Canandaigua (James B. Ritts of Counsel), for Plaintiff-Respondent.

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 contends that County Court erred in denying his request for a downward departure from the presumptive risk level because one of his prior convictions upon which his presumptive risk level was calculated was for endangering the welfare of a child (Penal Law § 260.10) and did not involve events of a sexual nature. We reject that contention. “It was within the court's discretion to [classify defendant as a level three risk], based upon clear and convincing evidence of the facts in support thereof” (People v. Billingsley, 6 A.D.3d 1170, 1170, 775 N.Y.S.2d 652, lv. denied 3 N.Y.3d 605, 785 N.Y.S.2d 21, 818 N.E.2d 663; see Correction Law § 168-n [3]; People v. Guaman, 8 A.D.3d 545, 778 N.Y.S.2d 704).

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

MEMORANDUM:

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