| People v Di John |
| 2008 NY Slip Op 01247 [48 AD3d 1302] |
| February 8, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Alfredo DiJohn, III, Appellant. |
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Appeal from an order of the Steuben County Court (Joseph W. Latham, J.), enteredNovember 4, 2005. The order determined that defendant is a level three risk pursuant to the SexOffender Registration Act.
It is hereby ordered that the order so appealed from is unanimously affirmed 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.). We reject the contention of defendant that County Court's assessment of 20 pointsagainst him under risk factor 4, continuing course of sexual misconduct, is not supported by clearand convincing evidence (see § 168-n [3]). According to the presentence report,defendant admitted that he sexually assaulted the victim during December 2003, February 2004,and March 2004 (see Sex Offender Registration Act: Risk Assessment Guidelines andCommentary, at 11 [Nov. 1997]; cf.People v Donk, 39 AD3d 1268, 1269 [2007]). Contrary to the further contention ofdefendant, the court's assessment of 10 points against him under risk factor 15, inappropriateliving situation, is also supported by clear and convincing evidence because the presentencereport establishes that defendant resided with his four-year-old son and 10-year-old stepson(see Risk Assessment Guidelines and Commentary, at 16; see also People vKearns, 253 AD2d 768, 774 [1998], affd 95 NY2d 816 [2000]). We reject thecontention of defendant that the court improvidently exercised its discretion in denying hisrequest for an adjournment to enable him to present expert testimony challenging the scientificvalidity of the risk assessment instrument (RAI). A request for an adjournment of a SORAhearing must be granted only "[w]here there is a dispute between the parties concerning thedeterminations" in order to permit either party "to obtain materials relevant to the determinationsfrom the state board of examiners of sex offenders or any state or local facility, hospital,institution, office, agency, department or division" (Correction Law § 168-n [3]). Thus, thecourt properly refused to grant an adjournment insofar as defendant sought to challenge the riskfactors set forth in the RAI. In any event, the decision whether to grant an adjournment is withinthe sound discretion of the hearing court (see generally Matter of Anthony M., 63 NY2d270, 283 [1984]), and the court properly exercised its discretion in denying defendant's request.Present—Scudder, P.J., Hurlbutt, Lunn, Fahey and Pine, JJ.