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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Duane J. CHARACHE, Defendant-Appellant.

Decided: September 29, 2006

PRESENT:  HURLBUTT, J.P., SCUDDER, GORSKI, AND GREEN, JJ. Gary A. Horton, Public Defender, Batavia (Bridget L. Field Of Counsel), for Defendant-Appellant. Lawrence Friedman, District Attorney, Batavia (Kevin T. Finnell of Counsel), for Plaintiff-Respondent.

Defendant appeals from an order determining that he is a level three risk under the Sex Offender Registration Act (Correction Law § 168 et seq.).   The total risk factor score on the risk assessment instrument prepared by the Board of Examiners of Sex Offenders (Board) resulted in the presumptive classification of defendant as a level three risk, but the Board recommended a downward departure to level two.   County Court, however, “was not ‘bound by the recommendation of the Board and, in the exercise of its discretion, [was entitled to] depart from that recommendation and determine [defendant's] risk level based upon the facts and circumstances that appear[ed] in the record’ ” (People v. Carswell, 8 A.D.3d 1073, 1073, 778 N.Y.S.2d 646, lv. denied 3 N.Y.3d 607, 785 N.Y.S.2d 24, 818 N.E.2d 666, quoting Matter of New York State Bd. of Examiners of Sex Offenders v. Ransom, 249 A.D.2d 891, 891-892, 672 N.Y.S.2d 185).   The record supports the court's determination that there was no “mitigating factor of a kind, or to a degree, not otherwise adequately taken into account by the guidelines,” and thus that a departure from the presumptive risk level was not warranted (Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary, at 4 [Nov. 1997] ).   Defendant failed to preserve for our review his contention that he was denied due process as the result of the failure of the prosecutor to provide timely notice as required by Correction Law § 168-n (3) that he would be seeking a risk level determination differing from the Board's recommendation (see People v. Smith, 17 A.D.3d 1045, 793 N.Y.S.2d 782, lv. denied 5 N.Y.3d 705, 801 N.Y.S.2d 252, 834 N.E.2d 1261;  see also People v. Girup, 9 A.D.3d 913, 914, 780 N.Y.S.2d 698).   We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

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