| People v Case |
| 2007 NY Slip Op 09653 [46 AD3d 996] |
| December 6, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v John J. Case,Appellant. |
—[*1] James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler of counsel), forrespondent.
Crew III, J.P. Appeal from an order of the County Court of Saratoga County (Scarano, Jr.,J.), entered December 7, 2006, which classified defendant as a risk level two sex offenderpursuant to the Sex Offender Registration Act.
In 2003, defendant pleaded guilty to sodomy in the second degree in full satisfaction of a15-count indictment accusing him of eight counts of sodomy in the second degree, six counts ofsodomy in the third degree and one count of endangering the welfare of a child. The chargesarose out of alleged acts of deviate sexual intercourse with a person less than 14 years oldoccurring from the fall of 1998 through January 2002. Defendant was sentenced to a prison termof 1¾ years to 5¼ years. Prior to his release, the Board of Examiners of SexOffenders evaluated and presumptively classified defendant as a risk level two sex offenderpursuant to the Sex Offender Registration Act (see Correction Law art 6-C). CountyCourt held a hearing, after which it adopted the Board's recommendation. Defendant appeals.
Defendant argues that the People did not sustain their burden of proof of showing by clearand convincing evidence that he was a risk two sex offender. Defendant challenges the pointsassessed against him based upon the duration of continuing sexual conduct with the victim andhis relationship with the victim.[*2]
With regard to the points assessed for continuing sexualconduct, the Board quite properly based its assessment upon, among other things, the presentenceinvestigation report, defendant's prior criminal history and his postoffense behavior. We likewisereject defendant's contention that the material relied upon by the Board, and ultimately by CountyCourt, was insufficient to establish a course of conduct. The victim's sworn statement to thepolice, which was properly considered (see People v Dort, 18 AD3d 23, 25 [2005], lv denied 4NY3d 885 [2005]), demonstrated a continuing course of sexual misconduct and constitutedreliable hearsay (see People vCantrell, 37 AD3d 1183, 1184 [2007], lv denied 8 NY3d 812 [2007]; see also People v Oginski, 35 AD3d952, 954 [2006]).
Similarly unavailing is defendant's claim that it was improperly determined that heestablished a relationship with the victim. The hearing evidence, the victim's statement to thepolice as well as defendant's statement to the police support the finding that defendantestablished the relationship with the victim for the purpose of victimizing him (see People vCarlton, 307 AD2d 763, 764 [2003]). Finally, we reject defendant's contention that he wasentitled to a downward departure from the risk level two classification.
Peters, Mugglin, Rose and Kane, JJ., concur. Ordered that the order is affirmed, withoutcosts.