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

1052
KA 12-00548
PRESENT: SCUDDER, P.J., SMITH, FAHEY, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

LEON E. HURD, DEFENDANT-APPELLANT.


THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF
COUNSEL), FOR DEFENDANT-APPELLANT.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Genesee County Court (Robert C.
Noonan, J.), entered February 14, 2012. 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: On appeal from an order determining that he is a
level three risk pursuant to the Sex Offender Registration Act
(Correction Law § 168 et seq.), defendant contends that County Court
erred in denying his request for a downward departure from the
presumptive risk level because one of his prior convictions upon which
that risk level was calculated was for endangering the welfare of a
child (Penal Law § 260.10) and did not involve events of a sexual
nature. We reject that contention. A departure from the presumptive
risk level is warranted where “there exists an aggravating or
mitigating factor of a kind, or to a degree, that is otherwise not
adequately taken into account by the guidelines” (Sex Offender
Registration Act: Risk Assessment Guidelines and Commentary at 4
[2006]). Here, even assuming, arguendo, that the court erroneously
treated defendant’s conviction of endangering the welfare of a child
as a sex crime, we note that defendant’s score on the risk assessment
instrument would still yield a presumptive level three risk, and
defendant presented no other basis to support his request for a
downward departure. Consequently, “defendant failed to present clear
and convincing evidence of special circumstances justifying a downward
departure” from the presumptive risk level yielded by the risk
assessment instrument (People v McDaniel, 27 AD3d 1158, 1159, lv
denied 7 NY3d 703).
                              -2-                 1052
                                             KA 12-00548




Entered:   November 8, 2013         Frances E. Cafarell
                                    Clerk of the Court
