         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1085
KA 11-01100
PRESENT: SMITH, J.P., CARNI, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

WILLIAM G. WHYTE, DEFENDANT-APPELLANT.


SCHIANO LAW OFFICE, P.C., ROCHESTER (CHARLES A. SCHIANO, SR., OF
COUNSEL), FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA, FOR RESPONDENT.


     Appeal from an order of the Ontario County Court (Craig J. Doran,
J.), dated January 25, 2011. 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: 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.). The Board of Examiners of Sex
Offenders (Board) prepared a risk assessment instrument (RAI) that
classified defendant as a level one risk. Following a hearing,
however, County Court agreed with the People that additional points
should be assessed under three risk factors, and thus defendant was
presumptively classified as a level two risk. The court also noted
that, in the event that it had not assessed the additional points, it
“would [have found] that an upward departure [was] supported by the
evidence.”

     Contrary to defendant’s contention, the court “is not bound by
the recommendation of the Board and, in the exercise of its
discretion, may depart from that recommendation and determine the sex
offender’s risk level based upon the facts and circumstances that
appear in the record” (Matter of New York State Bd. of Examiners of
Sex Offenders v Ransom, 249 AD2d 891, 891-892). Defendant’s further
contention that the court erred in assessing additional points under
risk factor five is not preserved for our review (see generally People
v Smith, 17 AD3d 1045, lv denied 5 NY3d 705). We reject defendant’s
contention that the court erred in assessing points under the other
two risk factors at issue. The court properly assessed points under
risk factor three because “the record reveals that a second underage
[child] was present during defendant’s criminal conduct” (People v
Milton, 55 AD3d 1073; see also People v Ramirez, 53 AD3d 990, lv
                                 -2-                          1085
                                                         KA 11-01100

denied 11 NY3d 710). In addition, the court properly assessed points
under risk factor four inasmuch as the female victim’s grand jury
testimony and admissions made by defendant, which were admitted in
evidence at the hearing, were sufficient to establish that defendant
engaged in a continuing course of sexual misconduct with that victim
(see People v Callan, 62 AD3d 1218; People v Rouff, 49 AD3d 517, lv
denied 10 NY3d 714).

     We reject defendant’s further contention that the court erred in
failing to determine that he was entitled to a downward departure from
the presumptive risk level, inasmuch as defendant failed to present
clear and convincing evidence of special circumstances warranting a
downward departure (see People v Ratcliff, 53 AD3d 1110, lv denied 11
NY3d 708; People v McDaniel, 27 AD3d 1158, lv denied 7 NY3d 703; see
generally People v Dexter, 21 AD3d 403, lv denied 5 NY3d 716). We
have considered defendant’s remaining contentions and conclude that
they are without merit.




Entered:   November 10, 2011                    Patricia L. Morgan
                                                Clerk of the Court
