SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1447
KA 11-01492
PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND MARTOCHE, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
RICHARD ODUM, DEFENDANT-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF
COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.
Appeal from an order of the Monroe County Court (Vincent M.
Dinolfo, J.), entered May 31, 2011. The order denied the appeal of
defendant from an order of Gates Town Court (Peter P. Pupatelli, J.),
dated October 4, 2010, determining that defendant is a level two 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 of Monroe County
Court that affirmed an order of Gates Town Court determining that he
is a level two risk pursuant to the Sex Offender Registration Act
(Correction Law § 168 et seq.). We reject defendant’s contention that
he was an acquaintance of the victim and that the People therefore
failed to establish the basis for the assessment of 20 points under
risk factor 7, i.e., his relationship with the victim. The evidence
established that “the victim met defendant for the first time [shortly
before] the day of the incident, did not know his legal name, and
apparently knew no other personal information about him. Thus, the
court properly concluded that ‘defendant was a stranger to the
victim’ ” (People v Gaines, 39 AD3d 1212, 1212-1213, lv denied 9 NY3d
803).
Assuming, arguendo, that, by seeking a downward departure from
his presumptive risk level on a different ground, defendant preserved
for our review his contention that a downward departure to level one
is warranted because of his lack of contact with the criminal justice
system since the time of the offense, we conclude that his contention
is without merit. Defendant failed “to present clear and convincing
evidence of special circumstances justifying a downward departure”
(People v Regan, 46 AD3d 1434, 1435; see People v Bennett, 90 AD3d
1664, 1664, lv denied 18 NY3d 810; People v Ratcliff, 53 AD3d 1110,
-2- 1447
KA 11-01492
1110, lv denied 11 NY3d 708).
Entered: December 21, 2012 Frances E. Cafarell
Clerk of the Court