THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. LEON HURD DEFENDANT APPELLANT (2013)

MEMORANDUM AND ORDER

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

Memorandum:  On appeal 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 that 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.   A departure from the presumptive risk level is warranted where “there exists an aggravating or mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines” (Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 4 [2006] ).   Here, even assuming, arguendo, that the court erroneously treated defendant's conviction of endangering the welfare of a child as a sex crime, we note that defendant's score on the risk assessment instrument would still yield a presumptive level three risk, and defendant presented no other basis to support his request for a downward departure.   Consequently, “defendant failed to present clear and convincing evidence of special circumstances justifying a downward departure” from the presumptive risk level yielded by the risk assessment instrument (People v. McDaniel, 27 AD3d 1158, 1159, lv denied 7 NY3d 703).

Frances E. Cafarell

Clerk of the Court