                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 23, 2014                   515769
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

TYRONE PACE, Also Known as
   SCOTT PACE,
                    Appellant.
________________________________


Calendar Date:   September 10, 2014

Before:   Lahtinen, J.P., McCarthy, Rose, Lynch and Devine, JJ.

                             __________


     Jane M. Bloom, Monticello, for appellant.

      James R. Farrell, District Attorney, Monticello, for
respondent.

                             __________


Lahtinen, J.P.

      Appeal from an order of the County Court of Sullivan County
(Labuda, J.), entered August 24, 2012, which classified defendant
as a risk level III sex offender pursuant to the Sex Offender
Registration Act.

      In 2000, defendant was sentenced to 15 years in prison upon
his plea of guilty to rape in the first degree for forcing a 13-
year-old victim to have sexual intercourse with him. At that
time, he also had a prior felony conviction involving sexual
activity with another 13-year-old female victim. As his prison
release date approached, the Board of Examiners of Sex Offenders
calculated a total risk factor of 100, which fell within the
range of a risk level II sex offender. However, the Board noted
                              -2-                515769

that his prior felony conviction for a sex crime constituted an
override factor presumptively subjecting him to a risk level III
classification. Following a hearing, County Court classified
defendant as a risk level III sex offender. Defendant appeals.

      We affirm. Defendant argues that the override factor for
his prior sex crime felony conviction was improperly referred to
at the hearing as "mandatory" rather than "presumptive."
Treating the presumptive override as mandatory is a ground for
reversal (see People v Denny, 87 AD3d 1230, 1231 [2011]; People v
Reynolds, 68 AD3d 955, 955-956 [2009]). During the hearing, the
People urged that the override was mandatory and County Court
characterized it as such when directing the People to submit
proposed findings. However, the subsequent order, while noting
that the People had argued for a mandatory override, nevertheless
went on to state, when discussing the relevant findings, that the
prior felony sex crimes conviction constituted a presumptive
override. Since the correct standard was used in the part of the
order discussing the pertinent facts and concluding that a
downward departure was not warranted, we are unpersuaded that
reversal is required.

      County Court's order set forth sufficient reasons for
denying defendant's request for a downward departure from the
presumptive level (see People v Carter, 35 AD3d 1023, 1023-1024
[2006], lv denied 8 NY3d 810 [2007]), and its determination in
such regard was within its discretion (see People v Kotzen, 100
AD3d 1162, 1163 [2012], lv denied 20 NY3d 860 [2013]).
Defendant's contention that there was insufficient evidence of
his history of drug abuse to support the Board assessing him 15
points was not preserved for our review (see People v Coleman, 45
AD3d 1118, 1118 [2007], lv denied 10 NY3d 705 [2008]) and, in any
event, is unpersuasive. The remaining arguments have been
considered and are unavailing.

     McCarthy, Rose, Lynch and Devine, JJ., concur.
                        -3-                  515769

ORDERED that the order is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
