| People v Wheeler |
| 2007 NY Slip Op 09859 [46 AD3d 1082] |
| December 13, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Nathanael J.Wheeler, Appellant. |
—[*1] Louise K. Sira, District Attorney, Johnstown (Matthew E. Trainor of counsel), forrespondent.
Spain, J. Appeal from an order of the County Court of Fulton County (Giardino, J.), enteredMarch 23, 2007, which classified defendant as a risk level II sex offender pursuant to the SexOffender Registration Act.
Defendant was convicted by a US Navy general court-martial of the offenses of attemptedrape, sodomy, assault and housebreaking. Defendant's sentence included four years ofconfinement and a dishonorable discharge. After his release and relocation to Fulton County, theBoard of Examiners of Sex Offenders, in accordance with the Sex Offender Registration Act(see Correction Law art 6-C), recommended that he be classified as a risk level II sexoffender based upon his court-martial convictions (see Correction Law § 168-a [2][d] [i]). Following a hearing at which the Board's case summary, the risk assessment instrumentand other evidence was admitted, County Court agreed with the Board and issued a writtendecision and order classifying him as such. Defendant now appeals.
We affirm. Defendant's sole contention on appeal—which we reject—is that,since the copy of his court-martial records provided by the Judge Advocate General's office didnot strictly comply with CPLR 4540, County Court should not have admitted it into evidenceand, therefore, the People failed to prove that he was a risk level II sex offender. In making adetermination [*2]under the Sex Offender Registration Act, thecourt can consider reliable hearsay evidence relevant to the determination (see CorrectionLaw § 168-k [2]; § 168-n [3]; see also People v Warren, 42 AD3d 593, 594 [2007], lvdenied 9 NY3d 810 [2007]; Peoplev Kaminski, 38 AD3d 1127, 1128 [2007], lv denied 9 NY3d 803 [2007]; People v Brown, 25 AD3d 924,924-925 [2006]; People v Dort, 18AD3d 23, 25 [2005], lv denied 4 NY3d 885 [2005]).
Here, accompanying defendant's court-martial records is a certification of authenticity signedby C.L. Reismeier, a Deputy Assistant Judge Advocate General. While the certification does notrecite the specific statutory language of CPLR 4540 (c), that he was the legal custodian of therecords, it attests that the records were a copy of those "on file in the Office of the JudgeAdvocate General." Further, proof was presented that the Office of the Judge Advocate Generalis the legal repository of all general court-martial records and Reismeier's signature on thecertification is verified under the seal of the Department of Navy by the Assistant JudgeAdvocate General for Military Justice. Accordingly, we find that it was well within CountyCourt's discretion to consider defendant's court-martial records as reliable hearsay evidence(see Sparaco v Sparaco, 309 AD2d 1029, 1030 [2003], lv denied 2 NY3d 702[2004]; Matter of Thomas v New York State Bd. of Parole, 208 AD2d 460 [1994];People v Parsons, 84 AD2d 510, 511 [1981], affd 55 NY2d 858 [1982]).
Crew III, J.P., Carpinello, Rose and Lahtinen, JJ., concur. Ordered that the order is affirmed,without costs.