People v Lujan

People v Lujan 2006 NY Slip Op 08560 [34 AD3d 1346] November 17, 2006 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 17, 2007

The People of the State of New York, Respondent, v Robert Lujan, Appellant.

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Appeal from an order of the Supreme Court, Monroe County (Kenneth R. Fisher, J.), entered January 6, 2005. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.

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

Memorandum: 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 AD3d 190 [2005], lv denied 4 NY3d 889 [2005]; People v Jimenez, 178 Misc 2d 319, 329 [1998]). 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 AD3d 1117 [2004]). 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 AD3d 881, 882 [2005]; People v Brooks, 308 AD2d 99, 106 [2003], lv denied 1 NY3d 502 [2003]). Present—Scudder, J.P., Kehoe, Martoche and Green, JJ.