           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

436
KA 12-00251
PRESENT: CENTRA, J.P., FAHEY, CARNI, WHALEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

GREGORY RAWLINSON, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (Frank
P. Geraci, Jr., A.J.), entered December 16, 2011. 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 is
unanimously affirmed without costs.

     Memorandum: Defendant appeals from an order determining that he
is a level three risk pursuant to the Sex Offender Registration Act
(Correction Law § 168 et seq.). To the extent that defendant contends
that Supreme Court improperly assessed 15 points for his history of
drug or alcohol abuse as recommended in the risk assessment instrument
(RAI) prepared by the Board of Examiners of Sex Offenders, we reject
that contention (see People v Zimmerman, 101 AD3d 1677, 1678). Even
assuming, arguendo, that the court erred in assessing 15 points with
respect to that risk factor, we note that defendant would nevertheless
have been assessed 110 points under the RAI, which is still a
presumptive level three risk. Contrary to his further contention, we
conclude that defendant failed to establish his entitlement to a
downward departure from the presumptive risk level inasmuch as he
failed to present the requisite clear and convincing evidence of
special circumstances to warrant such a departure (see People v Marks,
31 AD3d 1142, 1143, lv denied 7 NY3d 715; People v McDaniel, 27 AD3d
1158, 1159, lv denied 7 NY3d 703).




Entered:   May 3, 2013                             Frances E. Cafarell
                                                   Clerk of the Court
