PEOPLE v. FOSTER

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.). Defendant contends that County Court erred in denying his request for a downward departure from the presumptive risk level because one of his prior convictions upon which his presumptive risk level was calculated was for endangering the welfare of a child (Penal Law § 260.10) and did not involve events of a sexual nature. We reject that contention. "It was within the court's discretion to [classify defendant as a level three risk] . . . based upon clear and convincing evidence of the facts in support thereof" ( People v. Billingsley, 6 AD3d 1170, 1170, lv denied 3 NY3d 605; see Correction Law § 168-n; People v. Guaman, 8 AD3d 545).