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

334
KA 11-00195
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ROBERT E. GREENE, DEFENDANT-APPELLANT.


BRIDGET L. FIELD, ROCHESTER, 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.), dated January 5, 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: We reject defendant’s contention that County Court
improvidently exercised its discretion in determining that he is a
level three risk pursuant to the Sex Offender Registration Act
(Correction Law § 168 et seq.). Defendant was presumptively
classified as a level three risk pursuant to the risk assessment
instrument, and we conclude based on the record before us that
defendant failed to present clear and convincing evidence of special
circumstances to warrant a downward departure (see People v Burgos, 32
AD3d 1289, lv denied 8 NY3d 801; People v Marks, 31 AD3d 1142, 1143,
lv denied 7 NY3d 715). Defendant, who was 20 years old at the time of
the underlying offenses, engaged in sexual activity with a 13-year-old
female he initially met over the Internet. Defendant mistakenly
relies on cases in which this Court concluded that a downward
departure from the presumptive risk level was warranted where there
was no evidence of forcible compulsion and the defendant was not
appreciably older than the victim (see People v Goossens, 75 AD3d
1171, 1171-1172; People v Brewer, 63 AD3d 1604, 1605; People v
Weatherley, 41 AD3d 1238, 1238-1239; see generally Sex Offender
Registration Act: Risk Assessment Guidelines and Commentary, at 4-5
[2006]). This case is distinguishable in part because of defendant’s
extensive criminal history, which includes two prior convictions for
criminal contempt in the second degree. In addition, defendant was on
probation for attempted burglary in the second degree at the time he
committed the underlying offenses. After defendant committed and was
charged with the sex offenses at issue, he was charged with additional
                                 -2-                           334
                                                         KA 11-00195

counts of criminal contempt in the second degree for communicating
with the victim, for whom the court had issued an order of protection.
We agree with the court that “defendant’s criminal history evinces a
lack of restraint and a willingness to place his self-interest above
that of society which warrants the highest level of notification to
vulnerable populations . . . .”




Entered:   March 16, 2012                       Frances E. Cafarell
                                                Clerk of the Court
