People v. Boan , 782 N.Y.S.2d 205 ( 2004 )

Appeal from an order of the Erie County Court (Timothy J. Drury, J.), entered March 18, 2003. 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 be and the same hereby 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 Board of Examiners of Sex Offenders recommended that defendant be classified as a level three risk based on its finding concerning the existence of an “override” factor, i.e., that defendant had “a prior felony conviction for a sex crime,” and it further recommended that no “departure from the presumptive risk level is warranted” (see generally People v David W., 95 NY2d 130, 135 [2000]; People v Brown, 302 AD2d 919, 920 [2003]; People v Scott, 288 AD2d 763, 764-765 [2001]). It was within County Court’s discretion to adopt that recommendation based on the clear and convincing evidence of the supporting facts, particularly including defendant’s prior felony conviction (see Correction Law § 168-n [3]; People v Barnwell, 6 AD3d 1146 [2004]; People v Billingsley, 6 AD3d 1170 [2004]; People v Brown, 302 AD2d at 920; see generally People v Warwick, 5 AD3d 1050 [2004]; People v Thomas, 307 AD2d 759, 760 [2003]). Present— Pigott, Jr., P.J., Green, Hurlbutt, Kehoe and Martoche, JJ.