Appeal from an order of the Jefferson County Court (Kim H. Martusewicz, J.), entered April 25, 2006. 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 modified in the exercise of discretion by determining that defendant is a level two risk pursuant to the Sex Offender Registration Act and as modified the order is affirmed without costs.
Memorandum: We agree with defendant that County Court improvidently exercised its discretion in determining that he is a level three risk under the Sex Offender Registration Act (SORA) (Correction Law § 168 et seq.). We therefore substitute our own discretion “even in the absence of an abuse [of discretion]” (Matter of Von Bulow, 63 NY2d 221, 224 [1984]), and we modify the order by determining that defendant is a level two risk. Although pursuant to the risk assessment instrument defendant was presumptively a level three risk, we conclude based on the record before us that there is clear and convincing evi