People v. DiSano

Memorandum: Defendant appeals from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.). Defendant was presumptively determined to be a level two risk and, although Supreme Court reduced the points assessed against defendant by eliminating 15 points under the category for history of drug or alcohol abuse, defendant’s score nevertheless remained within the range of a level two risk. Defendant on appeal does not challenge the points assessed for any specific risk factor but instead contends that we should exercise our discretion to afford him a downward departure from his presumptive risk level. Upon our review of the record, we conclude that defendant failed to present clear and convincing evidence of special circumstances to justify a downward departure (see People v Ferrara, 38 AD3d 1302 [2007], Iv denied 8 NY3d 815 [2007]). Present—Hurlbutt, J.P., Martoche, Lunn, Green and Gorski, JJ.