PEOPLE v. LUJAN (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.).   Contrary to defendant's contention, clear and convincing evidence supports the assessment of 20 points on the risk assessment instrument for two victims (see People v. Moore, 16 A.D.3d 190, 792 N.Y.S.2d 386, lv. denied 4 N.Y.3d 889, 798 N.Y.S.2d 734, 831 N.E.2d 979;  People v. Jimenez, 178 Misc.2d 319, 329, 679 N.Y.S.2d 510).   In any event, the presumptive classification of defendant as a level three risk would not change if those points were eliminated, and Supreme Court properly concluded that a downward departure from that presumptive classification was not warranted (see People v. Foster, 13 A.D.3d 1117, 787 N.Y.S.2d 799).   Contrary to the further contention of defendant, the court did not err in conducting the redetermination hearing in his absence (see generally People v. Warrington, 19 A.D.3d 881, 882, 797 N.Y.S.2d 622;  People v. Brooks, 308 A.D.2d 99, 106, 763 N.Y.S.2d 86, lv. denied 1 N.Y.3d 502, 775 N.Y.S.2d 240, 807 N.E.2d 290).

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

MEMORANDUM: