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

1416
KA 10-01874
PRESENT: SCUDDER, P.J., CENTRA, GREEN, GORSKI, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

WILLIAM C. MARION, DEFENDANT-APPELLANT.


DAVID M. PALMIERE, ROCHESTER, FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (BRIAN D. DENNIS
OF COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Ontario County Court (William F.
Kocher, J.), dated September 25, 2009. 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: Defendant appeals from an order determining that he
is a level three risk pursuant to the Sex Offender Registration Act
(Correction Law § 168 et seq.). The total risk factor score on the
risk assessment instrument prepared by the Board of Examiners of Sex
Offenders (Board) resulted in the presumptive classification of
defendant as a level three risk but, as defendant correctly notes, the
Board recommended a downward departure to level two. “County Court,
however, was not bound by the Board’s recommendation and, in the
proper exercise of its discretion, the court determined defendant’s
risk level based upon the record before it” (People v Woodard, 63 AD3d
1655, 1656, lv denied 13 NY3d 706; see People v Charache, 32 AD3d
1345, affd 9 NY3d 829). “The record supports the court’s
determination that there was no ‘mitigating factor of a kind, or to a
degree, not otherwise adequately taken into account by the
guidelines,’ and thus that a departure from the presumptive risk level
was not warranted” (Charache, 32 AD3d 1345).




Entered:    December 23, 2011                      Frances E. Cafarell
                                                   Clerk of the Court
