People v Hurd

People v Hurd 2013 NY Slip Op 07312 Released on November 8, 2013 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Released on November 8, 2013
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: SCUDDER, P.J., SMITH, FAHEY, SCONIERS, AND VALENTINO, JJ.
1052 KA 12-00548

[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

v

LEON E. HURD, DEFENDANT-APPELLANT.


Appeal from an order of the Genesee County Court (Robert C. Noonan, J.), entered February 14, 2012. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.


THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF COUNSEL), FOR DEFENDANT-APPELLANT.
LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF COUNSEL), FOR RESPONDENT.


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).
Entered: November 8, 2013
Frances E. Cafarell
Clerk of the Court