| People v Wagner |
| 2010 NY Slip Op 05822 [75 AD3d 674] |
| July 1, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York,Respondent, v Russell F. Wagner, Appellant. |
—[*1] Kevin C. Kortright, District Attorney, Fort Edward (Katherine G. Henley of counsel), forrespondent.
McCarthy, J. Appeals from two orders of the County Court of Washington County(McKeighan, J.), entered May 28, 2009, which classified defendant as a risk level three sexoffender pursuant to the Sex Offender Registration Act.
In 1999, defendant pleaded guilty in Massachusetts to indecent assault and battery arisingout of his inappropriate sexual contact with a 15-year-old girl, the babysitter of hisseven-year-old daughter. In 2008, defendant was convicted by a jury in Washington County oftwo counts of endangering the welfare of a child, two counts of unlawfully dealing with a childand forcible touching—the conduct underlying the latter crime involved defendanttouching the breasts of a 17-year-old girl (see Penal Law § 130.52). Thereafter, theBoard of Examiners of Sex Offenders prepared separate risk assessmentinstruments—based on defendant's distinct Massachusetts and New Yorkconvictions—which both recommended that defendant be classified as a risk level threesex offender (see Correction Law art 6-C). Following hearings, County Court issued twoorders classifying defendant as a risk level three sex offender.[FN*]Defendant [*2]appeals both orders.
We affirm. With regard to the order emanating from his New York conviction, defendantasserts that County Court erred in assessing 20 points for a "continuing course of sexualmisconduct." In assessing such points, the victim's grand jury testimony that defendant oftentouched her breasts was "reliable hearsay sufficient to establish that defendant engaged in such acourse of conduct" (People vCallan, 62 AD3d 1218, 1219 [2009]; see generally People v Wagner, 72 AD3d 1196 [2010]).
We likewise reject defendant's contention that County Court improperly relied on hisMassachusetts conviction as the basis for an automatic override and for the assessment of 30points under the "number and nature of prior crimes" category on the risk assessment instrument(see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at3-4, 10-11 [2006]). Defendant was presumptively placed in the risk level three classification dueto his total risk assessment score of 115 points and, thus, the override factors would only becomerelevant if other factors warranting a downward departure existed (see People v Buckley, 35 AD3d1074, 1075 [2006]). As no such factors are applicable here, defendant was properlyclassified as a risk level three sex offender.
In light of our holding, an analysis of County Court's order arising from defendant'sMassachusetts conviction is academic.
Cardona, P.J., Peters, Spain and Egan Jr., JJ., concur. Ordered that the orders are affirmed,without costs.
Footnote *: The New York convictionresulted in defendant's classification as a risk level three predicate sex offender (seeCorrection Law § 168-a [7]; § 168-n [1]).