| People v Rogowski |
| 2012 NY Slip Op 04435 [96 AD3d 1113] |
| June 7, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v ThomasRogowski, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Stein, J. Appeal from an order of the County Court of Schenectady County (Drago, J.),entered January 18, 2012, which classified defendant as a risk level III sex offender, a sexuallyviolent offender and a predicate sex offender pursuant to the Sex Offender Registration Act.
Defendant was convicted of two counts of rape in the first degree and one count ofendangering the welfare of a child, stemming from the rape of his niece who, at the time, wasunder the age of 11. Prior to defendant's scheduled release from prison, County Court conducteda risk level assessment hearing pursuant to the Sex Offender Registration Act (seeCorrection Law art 6-C), assigned him a total risk factor score of 125, resulting in a risk level IIIassessment, and designated him as a sexually violent offender and a predicate sex offender.Defendant now appeals and we affirm.[FN*][*2]
Defendant contends that County Court improperlyallocated 10 points for failure to accept responsibility and 20 points for finding his actions tohave been part of a continuing course of sexual misconduct. With regard to the former, CountyCourt noted that defendant had not yet completed a sex offender treatment program. Whiledefendant was on the waiting list for such a program, even its completion would not haveprecluded a finding of failure to accept responsibility (see People v Legall, 63 AD3d 1305, 1306 [2009], lv denied13 NY3d 706 [2009]). Moreover, defendant's insistence on his innocence and failure to acceptresponsibility were noted in the presentence investigation report, as well as in the risk assessmentinstrument and case summary, all of which were properly considered by the court (seeCorrection Law § 168-n [3]; People v Mingo, 12 NY3d 563, 572-573 [2009]; People v Burch, 90 AD3d 1429,1431 [2011]; People v Hammer, 82AD3d 1456, 1457 [2011]). Thus, in our view, the People met their burden of establishingthis risk factor by clear and convincing evidence (see People v McFall, 93 AD3d 962, 963 [2012]; People v Gleason, 85 AD3d 1508[2011], lv denied 17 NY3d 711 [2011]; People v Stewart, 61 AD3d 1059, 1060 [2009]).
We likewise find that clear and convincing evidence—including the presentenceinvestigation report, case summary, victim's statement and the grand jury testimony of thevictim's grandmother—supports County Court's assessment of points for engaging in acontinuing course of sexual misconduct. The statement of defendant's niece, together with hergrandmother's testimony, clearly indicate that defendant engaged in sexual conduct with his nieceon more than one occasion. In addition, the record indicates that defendant was previouslyconvicted of sexual abuse in the second degree with respect to a different victim (see People v Wizes, 79 AD3d1543, 1543-1544 [2010]; People vWillette, 67 AD3d 1259, 1260-1261 [2009], lv denied 14 NY3d 704 [2010]; People v Wright, 53 AD3d 963,964 [2008], lv denied 11 NY3d 710 [2008]).
Rose, J.P., Malone Jr., Garry and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: Although County Courtexecuted the standardized form designating defendant's risk level classification (see People v Kennedy, 79 AD3d1470 [2010]), which is neither identified as an order nor contains "so ordered" language (see People v Joslyn, 27 AD3d1033, 1035 [2006]), an actual order was not entered until January 2012. Therefore,defendant's January 2011 notice of appeal is premature. Nevertheless, in the interest of judicialeconomy, we will excuse this defect, treat the notice of appeal as valid and address the merits(see CPLR 5520 [c]; SignatureHealth Ctr., LLC v State of New York, 92 AD3d 11, 13 n [2011]; Davis v Wyeth Pharms., Inc., 86 AD3d907, 908 n 2 [2011]).