| People v Wood |
| 2009 NY Slip Op 02067 [60 AD3d 1350] |
| March 20, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Scott M.Wood, Appellant. |
—[*1] Thomas E. Moran, District Attorney, Geneseo (Eric R. Schiener of counsel), forrespondent.
Appeal from an order of the Livingston County Court (Robert B. Wiggins, J.), enteredOctober 11, 2007. 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.). Contrary to defendant's contention, County Court properly assessed 30 points and 10points, respectively, under the risk factors for "number and nature of prior crimes" and "recencyof prior felony or sex crime." Although defendant had not yet been sentenced for the violentfelony of robbery in the second degree when he committed the two acts of rape in the seconddegree that constitute the "current offense" for purposes of the SORA registration process, hehad entered a plea of guilty to that robbery. That plea falls within the definition of a "conviction"pursuant to CPL 1.20 (13), and we thus conclude that the robbery conviction was a proper basisfor the assessment of points under the risk factor for "number and nature of prior crimes" (seeCorrection Law § 168-l [5] [b] [iii]; Sex Offender Registration Act: RiskAssessment Guidelines and Commentary, at 13 [2006]; see generally People v Montilla, 10 NY3d 663 [2008]). Based onour conclusion that 30 points were properly assessed under that risk factor, we further concludethat 10 points were properly assessed under the risk factor for "recency of prior felony or sexcrime" (see Risk Assessment Guidelines and Commentary, at 14).
Defendant failed to preserve for our review his contention that the court erred in assessingpoints under the risk factor for "duration of offense conduct with victim" (see generally People v Smith, 17AD3d 1045 [2005], lv denied 5 NY3d 705 [2005]). In any event, we conclude thatthe People presented the requisite clear and convincing evidence that defendant engaged in twoacts of sexual intercourse with the victim and that such "acts [were] separated in time by at least24 hours" (Risk Assessment Guidelines and Commentary, at 10; see Correction Law§ 168-n [3]). Finally, we conclude that the court's oral findings of fact and conclusions oflaw are supported by [*2]the record and are "sufficiently detailedto permit intelligent appellate review" (People v Roberts, 54 AD3d 1106, 1107 [2008], lv denied11 NY3d 713 [2008]; see § 168-n [3]). Present—Scudder, P.J., Hurlbutt,Peradotto, Green and Gorski, JJ.