| People v LaRock |
| 2007 NY Slip Op 09149 [45 AD3d 1121] |
| November 21, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Matthew D.LaRock, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Laurie L. Paro of counsel), forrespondent.
Mercure, J.P. Appeal from an order of the County Court of St. Lawrence County (Richards,J.), entered November 27, 2006, which classified defendant as a risk level three sex offenderpursuant to the Sex Offender Registration Act.
In October 2006, defendant pleaded guilty to a superior court information charging him withtwo counts of rape in the third degree under Penal Law § 130.25 (2). He was thereaftersentenced to 180 days of incarceration and 10 years of probation. The Board of Examiners of SexOffenders submitted a risk level assessment instrument to County Court pursuant to the SexOffender Registration Act (see Correction Law art 6-C) with a score of 115 points,presumptively classifying defendant as a risk level three sex offender, with no departurerecommended. After hearing argument on the matter at sentencing, County Court adopted theBoard's recommendation, classifying defendant as a risk level three sex offender. Defendant nowappeals.
As an initial matter, the burden is on the prosecution to establish the proper risk levelclassification by clear and convincing evidence (see Correction Law § 168-n [3];People v Lesch, 38 AD3d 1129,1130 [2007], lv denied 8 NY3d 816 [2007]). The court may consider reliable hearsayevidence including the risk level assessment instrument, case summary and presentenceinvestigation report to determine the proper classification (see People v Whaley, 38 AD3d 1106, 1107 [2007]; People v Dickison, 24 AD3d 980,981 [2005], lv denied 6 NY3d 709 [2006]). While County Court is authorized to departfrom the presumptive risk level based upon the facts [*2]in therecord, the question of whether mitigating factors exist which warrant a reduction is within thesound discretion of the court to decide (see People v Warren, 42 AD3d 593, 594 [2007]).
In this case, defendant disputes the assessment of 10 points for forcible compulsion, arguingthat he was not prosecuted on a charge containing the element of forcible compulsion, that he hasconsistently maintained that the sex with the victims was consensual and that the hearsaystatements of the victim who claimed he used forcible compulsion are not reliable. Pursuant toCorrection Law § 168-n (3), the trial court is not limited to the crime of conviction andmay consider the circumstances of the underlying crime, as well as "any victim's statement andany relevant materials" (see Sex Offender Registration Act: Risk Assessment Guidelinesand Commentary, at 5 [2006]; People vLovelace, 39 AD3d 728, 728 [2007], lv denied 9 NY3d 803 [2007]). Basedupon the presentence investigation, we find the imposition of 10 points for forcible compulsionto be supported by clear and convincing evidence (see People v Cantrell, 37 AD3d 1183, 1184 [2007], lvdenied 8 NY3d 812 [2007]). Moreover, with regard to defendant's challenge to the pointsassessed under the category of release supervision, we note that, even were this Court to accepthis challenge to those five points, defendant's risk assessment score would still place him in therisk level three classification (see Peoplev Ashley, 19 AD3d 882, 883 [2005]). In short, there is no indication that County Courtabused its discretion in denying defendant's request for a downward departure from thepresumptive risk level.
Finally, while defendant argues that County Court should have adjourned the hearing untilcertain further information became available, defendant failed to request an adjournment for thispurpose. Thus, the issue is not preserved for appellate review (see People v Ryan, 38 AD3d 1055,1055 [2007]; People v Ebert, 18AD3d 963, 964 [2005]).
Spain, Carpinello, Mugglin and Kane, JJ., concur. Ordered that the order is affirmed, withoutcosts.