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

1100
KA 14-00259
PRESENT: SCUDDER, P.J., FAHEY, CARNI, LINDLEY, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

EUGENE A. WILLIAMS, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT B. HALLBORG,
JR., OF COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. SMALL OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Erie County Court (Kenneth F. Case,
J.), entered May 30, 2013. The order determined that defendant is a
level two risk pursuant to the Sex Offender Registration Act.

     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 two risk pursuant to the Sex Offender Registration Act ([SORA]
Correction Law § 168 et seq.), defendant contends that the
determination should be modified downward in the interest of justice
so as to make him a level one risk. In support of that contention,
defendant notes that County Court assessed 30 points against him under
risk factor 9 (number and nature of prior crimes) based on an
attempted robbery offense for which he was adjudicated a youthful
offender. Without those 30 points, defendant would have been a
presumptive level one risk. To the extent that defendant contends
that the SORA court should have granted him a downward departure, that
contention is unpreserved for our review “because defendant never
asked the SORA court to order a downward departure” (People v
Gillotti, 23 NY3d 841, 861 n 5; see People v Johnson, 11 NY3d 416,
421-422; People v Quinones, 91 AD3d 1302, 1303, lv denied 19 NY3d
802). In any event, as defendant correctly acknowledges, it is well
settled that “youthful offender adjudications are to be treated as
‘crimes’ for purposes of assessing the defendant’s likelihood of
re-offending and danger to public safety” (People v Moore, 1 AD3d 421,
421, lv denied 2 NY3d 743; see Sex Offender Registration Act: Risk
Assessment Guidelines and Commentary, at 6, 13 [2006]; People v
Wilkins, 77 AD3d 588, 588, lv denied 16 NY3d 703; People v Irving, 45
                                 -2-                          1100
                                                         KA 14-00259

AD3d 1389, 1389-1390, lv denied 10 NY3d 703).




Entered:   November 21, 2014                    Frances E. Cafarell
                                                Clerk of the Court
