Opinion
No. 507009.
May 27, 2010.
Mercure, J. Appeal from an order of the County Court of Broome County (Smith, J.), entered April 29, 2009, which classified defendant as a risk level three sex offender pursuant to the Sex Offender Registration Act.
Norbert A. Higgins, Binghamton, for appellant.
Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), for respondent.
Before: Cardona, P.J., Lahtinen, Malone Jr. and Egan Jr., JJ.
Defendant pleaded guilty in 2004 to sexual abuse in the first degree and was sentenced to a term of imprisonment. In anticipation of his release from prison, the Board of Examiners of Sex Offenders prepared a risk assessment instrument that presumptively classified defendant as a risk level two sex offender. However, based upon the existence of an override factor — namely, defendant's 1997 conviction of, insofar as is relevant here, sexual abuse in the first degree — the Board recommended that he be classified as a risk level three sex offender. County Court adopted the Board's recommendation and this appeal ensued.
Preliminarily, defendant raised no objection to the manner in which the hearing was conducted and, hence, has failed to preserve his due process claims for our review ( see People v McLean, 55 AD3d 973, 974). We reach a similar conclusion regarding defendant's assertion that County Court should have adjourned the hearing. Defendant not only failed to request an adjournment ( see People v Ebert, 18 AD3d 963, 964), but refused County Court's offer of one, stating, "We're just going to finish this today."
Turning to the merits, defendant does not challenge the scoring on the risk assessment instrument, and his prior felony conviction for a sex crime "constituted an applicable override factor resulting in a presumptive risk level III assessment" ( People v Winney, 43 AD3d 1239, 1239). Inasmuch as the record is devoid of clear and convincing evidence of mitigating circumstances, a downward departure from the presumptive risk level classification is not warranted ( see People v Johnson, 46 AD3d 1032, 1033; People v Pride, 37 AD3d 957, 958, lv denied 8 NY3d 812; People v Mabb, 32 AD3d 1135, 1135). Accordingly, County Court's order classifying defendant as a risk level three sex offender is affirmed.
Ordered that the order is affirmed, without costs.