The Legal Aid Bureau of Buffalo, Inc., Buffalo (Kristin M. Preve of Counsel), for Defendant–Appellant. Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.
Appeal from an order of the Erie County Court (Michael F. Pietruszka, J.), entered July 21, 2014. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Kristin M. Preve of Counsel), for Defendant–Appellant.
Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.
Defendant appeals from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act ( [SORA] Correction Law § 168 et seq. ). We reject defendant's contention that the People failed to establish by clear and convincing evidence the applicability of an override to a presumptive level three risk based on his diagnosis of pedophilia (see People v. Lagville, 136 A.D.3d 1005, 1006, 26 N.Y.S.3d 316 ; cf. People v. McCollum, 41 A.D.3d 1187, 1188, 839 N.Y.S.2d 360, lv. denied 9 N.Y.3d 807, 843 N.Y.S.2d 537, 875 N.E.2d 30 ). We nevertheless agree with
defendant that County Court erred in denying his request for a downward departure to a level two risk on the ground that it applied an incorrect burden of proof, i.e., clear and convincing evidence rather than preponderance of the evidence (see People v. Gillotti, 23 N.Y.3d 841, 863–864, 994 N.Y.S.2d 1, 18 N.E.3d 701 ). We therefore reverse the order, and we remit the matter to County Court for a determination of defendant's request for a downward departure, following a further hearing if necessary. We note that the record is not clear whether information provided to this Court in connection with defendant's appeal had been received by County Court before it issued its decision. Finally, we reject defendant's contention that he was denied effective assistance of counsel (see People v. Russell, 115 A.D.3d 1236, 1236, 982 N.Y.S.2d 271, lv. denied 118 A.D.3d 1369, 987 N.Y.S.2d 589 ; see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ).
It is hereby ORDERED that the order so appealed from is reversed on the law without costs and the matter is remitted to Erie County Court for further proceedings.
PERADOTTO, J.P., CARNI, CURRAN, TROUTMAN, and SCUDDER, JJ., concur.