People v. Thomas , 762 N.Y.S.2d 548 ( 2003 )

Appeal from an order of Genesee County Court (Noonan, J.), entered February 4, 2002, which determined that defendant is a level three risk under the Sex Offender Registration Act.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Defendant was convicted upon his plea of guilty of attempted sexual abuse in the first degree (Penal Law §§ 110.00, 130.65), stemming from his attack on a coworker in December 1998, and was sentenced to an indeterminate term of imprisonment of 2 to 4 years. The Board of Examiners of Sex Offenders (Board) recommended that, upon his release from prison, defendant be determined to be a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.), and County Court adopted the Board’s recommendation. Contrary to defendant’s contention, the court’s determination is supported by clear and convincing evidence (see generally People v Mallory, 293 AD2d 881 [2002]; Matter of Vandover v Czajka, 276 AD2d 945, 947 [2000]). Although defendant’s point total on the Board’s Risk Assessment Instrument was 75, presumptively placing defendant in the classification of a level two risk (see People v David W., 95 NY2d 130, 135 [2000]), the court properly determined that the Board’s risk assessment score did not fully take into account the number and nature of defendant’s prior misdemeanor sex offenses and a prior violent felony conviction (see Correction Law § 168-n [3]; see also People v Bottisti, 285 AD2d 841 [2001]; People v Harris, 178 Misc 2d 858, 860-861 [1998]). Present— Wisner, J.P., Hurlbutt, Burns, Lawton and Hayes, JJ.