| People v Baker |
| 2008 NY Slip Op 10365 [57 AD3d 1472] |
| December 31, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Shawn J. Baker,Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (James B. Ritts of counsel), forrespondent.
Appeal from an order of the Ontario County Court (Craig J. Doran, J.), entered October 11,2007. 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 is unanimously affirmed without costs.
Memorandum: Defendant appeals from an order determining that he is a level three risk pursuant tothe Sex Offender Registration Act ([SORA] Correction Law § 168 et seq.). Defendantcontends that County Court erred in assessing 30 points based on a prior violent felony, but correctlyconcedes that he failed to preserve that contention for our review (see generally People v Brown-McKnight, 45 AD3d 1334 [2007], lvdenied 10 NY3d 701 [2008]; People vPierce, 27 AD3d 1182 [2006]; People v Peterson, 8 AD3d 1124 [2004], lv denied 3 NY3d607 [2004]). In any event, that contention is without merit because defense counsel stated at the SORAhearing that the crime underlying defendant's youthful offender adjudication was arson in the seconddegree (Penal Law § 150.15), which is a violent felony (see § 70.02 [1] [a]).
We reject the further contention of defendant that the court erred in assessing 10 points under therisk factor for failing to accept responsibility. Although defendant pleaded guilty to the crimes underlyingthe SORA determination, he blamed the victim in his statement to the police and showed no remorse inhis statement to the probation officer. The court properly concluded that those statements did not"reflect a genuine acceptance of responsibility as required by the risk assessment guidelines developedby the Board [of Examiners of Sex Offenders]" (People v Noriega, 26 AD3d 767 [2006], lv denied 6 NY3d713 [2006] [internal quotation marks omitted]). We also reject the contention of defendant that thecourt erred in assessing 30 points for three or more victims rather than 20 points for two victims underthe risk factor for number of victims. The case summary indicating that there were three victimsconstitutes reliable hearsay (see People vWragg, 41 AD3d 1273 [2007], lv denied 9 NY3d 809 [2007]). In any event, even ifwe were to conclude that each of defendant's contentions has merit, we note that defendant'spresumptive classification as a level three risk would not be altered based on the reduced total riskfactor score (see People vHurlburt-Anderson, 46 AD3d 1437 [2007]; People v McDaniel, 27 [*2]AD3d 1158 [2006], lv denied 7 NY3d 703 [2006]).Present—Centra, J.P., Peradotto, Green and Pine, JJ.