| People v Thomas |
| 2009 NY Slip Op 01048 [59 AD3d 783] |
| February 11, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Sonny W.Thomas, Appellant. |
—[*1] Kathleen B. Hogan, District Attorney, Lake George (Kevin P. Donlon of counsel), forrespondent.
Lahtinen, J. Appeal from an order of the County Court of Warren County (Hall, Jr., J.),entered September 10, 2007, which classified defendant as a risk level three sex offenderpursuant to the Sex Offender Registration Act.
Defendant pleaded guilty in October 2001 to one count of attempted rape in the first degreeand was sentenced to a prison term of seven years followed by five years of postreleasesupervision. In anticipation of defendant's release from prison, the Board of Examiners of SexOffenders prepared a risk assessment instrument, which presumptively classified defendant as arisk level three sex offender (160 points) in accordance with the Sex Offender Registration Act(see Correction Law art 6-C). Following a hearing, County Court granted the People'srequest to raise defendant's score to 175 points and otherwise concurred with the classification.Defendant now appeals, contending that he was improperly assessed points in four categories onthe risk assessment instrument and, further, that a downward departure was warranted.
Defendant initially argues that he improperly was assessed 20 points for the number ofvictims. We cannot agree. Although defendant pleaded guilty to a single count of attempted rapein the first degree, County Court was not limited to the crime to which defendant pleaded guiltybut could, instead, consider reliable hearsay evidence in the record, which plainly revealed thatthere were two victims (see People vMilton, 55 AD3d 1073 [2008]).[*2]
Similarly unpersuasive is defendant's claim that heerroneously was assessed 30 points for his youthful offender adjudication for gang assault in thesecond degree, a class C violent felony (see Penal Law § 120.06). "In the contextof the criminal history section of the risk assessment instrument, 'the term "crime" includescriminal convictions, youthful offender adjudications and juvenile delinquency findings' " (People v Irving, 45 AD3d 1389,1389 [2007], lv denied 10 NY3d 703 [2008], quoting Sex Offender Registration Act:Risk Assessment Guidelines and Commentary, at 6 [Nov. 1997]; see People v Coleman, 45 AD3d1118 [2007], lv denied 10 NY3d 705 [2008]). Thus, it was appropriate to considerthis adjudication in assessing defendant's likelihood of reoffense.
Nor do we find merit to defendant's assertion that he inappropriately was scored 15 pointsfor failing to accept responsibility. The record reflects that defendant minimized his involvementin the incident, blamed his codefendant for his arrest and prosecution, suggested that the victimsmisled him as to their respective ages and refused to participate in a voluntary sex offendertreatment program (see People vHurlburt-Anderson, 46 AD3d 1437 [2007]; People v Dubuque, 35 AD3d 1011 [2006]). Finally, in light ofdefendant's disciplinary sanctions, we reject his claim that he improperly was assessed 10 pointsfor conduct while confined (see Peoplev Catchings, 56 AD3d 1181 [2008]; People v Peterson, 8 AD3d 1124 [2004], lv denied 3 NY3d607 [2004]). In short, the record as a whole contains clear and convincing evidence to supportthe points assessed and, hence, we cannot say that County Court abused its discretion inclassifying defendant as a risk level three sex offender (see People v Mitchell, 41 AD3d 1056, 1057 [2007]). We reach asimilar conclusion regarding County Court's conclusion that a downward departure was notwarranted (see People v Roe, 47AD3d 1156 [2008], lv denied 10 NY3d 707 [2008]). Accordingly, County Court'sorder is affirmed.
Cardona, P.J., Peters, Rose and Kane, JJ., concur. Ordered that the order is affirmed, withoutcosts.