Defendant appeals from an order of the Criminal Court of the City of New York, New York County (Robert M. Mandelbaum, J.), entered September 14, 2010, which, after a hearing, designated him a level two sex offender and a predicate sex offender pursuant to the Sex Offender Registration Act.

Per Curiam.

Order (Robert M. Mandelbaum, J.), entered September 14, 2010, modified by vacating the determination that defendant is a predicate sex offender and, as modified, affirmed.

The People met their burden of establishing, by clear and convincing evidence, risk factors bearing a sufficient total point score to support a level two sex offender adjudication. Defendant's challenge to the 30-point assessment based upon his prior criminal history, to the extent preserved for appellate review, is lacking in merit, since his case summary constituted "reliable hearsay" for SORA purposes (People v Mingo, 12 NY3d 563, 573 [2009]) and established that he was previously convicted of a misdemeanor sex offense. The court properly exercised its discretion in denying defendant a downward departure from his presumptive risk level (see People v Guaman, 8 AD3d 545 [2004]). However, as the People concede, the court erred in classifying defendant as a predicate sex offender.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: December 27, 2012