| People v Callan |
| 2009 NY Slip Op 04138 [62 AD3d 1218] |
| May 28, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v David D.Callan, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
Spain, J.P. Appeal from an order of the County Court of Broome County (Cawley Jr., J.),entered February 29, 2008, which classified defendant as a risk level two sex offender pursuantto the Sex Offender Registration Act.
In 1990, defendant was convicted upon his guilty plea of the crime of sexual abuse in thefirst degree and was sentenced to a jail term and probation. He was classified as a risk level threesex offender pursuant to the terms of the Sex Offender Registration Act (Correction Law §168 et seq.). Defendant was afforded a reassessment hearing (see Doe v Pataki, 3F Supp 2d 456 [SD NY 1998]), following which he was reclassified as a risk level two sexoffender. Defendant appeals and we affirm.
We are unswayed by defendant's assertion that County Court's reclassification was notsupported by clear and convincing evidence (see Correction Law § 168-n [3]; People v Dort, 18 AD3d 23, 24[2005], lv denied 4 NY3d 885 [2005]). Defendant's guilty plea established that hesubjected the 10-year-old victim to sexual contact (see Correction Law § 168-n[3]). Defendant contends that he should not have been assessed points for a "[c]ontinuing courseof sexual misconduct." County Court was not limited to consideration of the crime of conviction,however, and properly viewed the victim's statement to police, as well as a supplementary reportprepared by a Broome County Sheriff's Department detective, as reliable hearsay sufficient to[*2]establish that defendant engaged in such a course of conduct(see People v Thomas, 59 AD3d783, 784 [2009]; People vMilton, 55 AD3d 1073, 1073 [2008]). Those documents also provide reliable hearsaysufficient to warrant assessing points for defendant having engaged in sexual intercourse withthe victim. As such, even if the People failed to establish that defendant had not acceptedresponsibility for his actions, his risk assessment score would still rank him as a risk level twosex offender (see People v Bove, 52AD3d 1124, 1125 [2008]).
Finally, County Court appropriately considered defendant's criminal history and all otherrelevant factors, and its determination that the proof did not warrant a downward departure fromthe presumptive risk level was not an abuse of discretion (see People v Scott, 35 AD3d 1015, 1016 [2006], lv denied8 NY3d 808 [2007]; People vMothersell, 26 AD3d 620, 621 [2006]).
Lahtinen, Malone Jr., Stein and Garry, JJ., concur. Ordered that the order is affirmed,without costs.