| People v Castleberry |
| 2007 NY Slip Op 07172 [43 AD3d 1369] |
| September 28, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v RoyCastleberry, Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Raymond C. Herman of counsel), forrespondent.
Appeal from an order of the Erie County Court (Shirley Troutman, J.), entered September 29,2006. The order determined that defendant is a level three risk pursuant to the Sex OffenderRegistration Act.
It is hereby ordered that the order so appealed from be and the same hereby is unanimouslyaffirmed without costs.
Memorandum: Defendant appeals from an order determining that he is a level three riskpursuant to the Sex Offender Registration Act ([SORA] Correction Law § 168 etseq.). Defendant contends that County Court's determination of his risk level is based in partupon the court's inaccurate characterizations of the facts concerning his criminal history and druguse while incarcerated. Defendant's contention is preserved for our review only to the extent thatdefendant contends that the information presented to the court was hearsay (see generally People v Staples, 37AD3d 1099 [2007], lv denied 8 NY3d 813 [2007]; People v Smith, 17 AD3d 1045[2005], lv denied 5 NY3d 705 [2005]). We reject that contention. The court relied ondefendant's own statements during the SORA hearing, as well as the presentence report and thecase summary prepared in anticipation of defendant's release from incarceration, in determiningthat a level three risk classification was appropriate (see generally People v Warren, 42 AD3d 593 [2007]). Contrary todefendant's contention, the case summary contains reliable hearsay and the court thereforeproperly relied upon it (see People vRamos, 41 AD3d 1250 [2007]; People v Marrocco, 41 AD3d 1297 [2007]).
Defendant further contends that the court abused its discretion in assessing 15 points for hisrelease from incarceration without further supervision and 5 points for his refusal of treatmentwhile incarcerated inasmuch as he is presently confined pursuant to the Mental Hygiene Law andthus is both under supervision and receiving treatment. The record contains no evidencesupporting the statement in defendant's brief on appeal that defendant is presently confined and,in any event, to the extent that such confinement occurred after the SORA proceedings, thatinformation was not before the court when it determined defendant's risk level.
Finally, we reject defendant's contention that the court abused its discretion in applying [*2]the presumptive override for a prior sex felony conviction indetermining that defendant is a level three risk. Although that prior sex felony convictionoccurred in 1990, the court noted that defendant had twice violated parole with respect to thesentence he received for that prior conviction and that he committed the acts resulting in theinstant conviction of rape in the first degree in 1997, less than two years after he was dischargedfrom the sentence for the prior conviction. The record thus establishes that the court consideredthe recency of the prior sex conviction and did not merely adopt the presumptive overriderecommended by the Board. Rather, the court independently assessed whether that override waswarranted (cf. People v Sass, 27AD3d 968, 969 [2006]; People vSanchez, 20 AD3d 693, 694-695 [2005]). Present—Scudder, P.J., Hurlbutt,Gorski, Centra and Green, JJ.