
    The People of the State of New York, Respondent, v James Fountain, Appellant.
    [979 NYS2d 810]
   Order, Supreme Court, New York County (Roger Hayes, J), entered on or about September 14, 2009, which adjudicated defendant a level three sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The court properly exercised its discretion in declining to grant a downward departure to level two (see People v Cintron, 12 NY3d 60, 70 [2009], cert denied 558 US 1011 [2009]; People v Johnson, 11 NY3d 416, 418, 421 [2008]). Defendant’s egregious criminal record, including the underlying sex crime, defendant’s prior sex crimes against children, and his homicide convictions, outweighs the factors he cites in support of a downward departure. Concur — Gonzalez, EJ, Sweeny, Richter, ManzanetDaniels and Clark, JJ.  