| People v Teagle |
| 2009 NY Slip Op 05754 [64 AD3d 549] |
| July 7, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Elmore Teagle, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Ronnie Jane Lamm of counsel), forrespondent.
Appeal by the defendant from an order of the County Court, Suffolk County (Hudson, J.),dated April 16, 2008, which, after a hearing, designated him a level three sex offender pursuantto Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
The defendant was convicted in Florida in 1994 of the crime of "sexualbattery—injury not likely," under Florida Statutes Annotated § 794.011 (5). He wasrequired by Florida law to register as a sex offender (see Fla Stat Ann § 775.21 [4][a]). After serving several years in jail on the Florida offense, the defendant returned to NewYork, where he was notified that he was required to register as a sex offender under the SexOffender Registration Act (hereinafter SORA). On this appeal from the order designating him alevel three sex offender, the defendant argues, among other things, that his Florida convictionrelated to one victim only, and that it was thus improper to assess him 20 points under risk factor3, which relates to the number of his victims. He also argues that he was improperly assessed 10points under risk factor 12, based upon his alleged failure to accept responsibility for hisconduct. The defendant further argues that he was improperly assessed 30 points in connectionwith risk factor 9, which relates to the "number and nature of [his] prior crimes."
We find that the substance of the defendant's postarrest statement to the Florida police in1994 that the victim encouraged him to have sex with her, combined with his failure, in oraround 2003, to comply with the reporting requirements of Florida's equivalent of SORA,constitute clear and convincing evidence that he failed to genuinely accept responsibility for hisconduct (see People v Legall, 63AD3d 1305 [3d Dept 2009]; Peoplev Baker, 57 AD3d 1472 [2008], lv denied 12 NY3d 706 [2009]). Accordingly,the defendant was properly assessed 10 points for his failure to accept responsibility for hisconduct.
The defendant's argument that he is not properly subject to SORA at all is not properlybefore this Court since a CPLR article 78 proceeding is the only proper vehicle in which to raisea challenge to an agency determination that an out-of-state conviction subjects a defendant toSORA (see People v Windham, 10NY3d 801, 802 [2008]; see alsoPeople v Rendace, 58 AD3d 821 [2009]). The defendant's argument relating to the 30points assessed under risk factor 9, based on his 1988 [*2]conviction in New York of the crime of sexual abuse in the thirddegree (see Penal Law § 130.55), is unpreserved for appellate review.
In light of our determination, the defendant's argument with respect to risk factor 3 has,under these circumstances, been rendered academic. We, therefore, need not address the meritsof that argument (but see generallyPeople v Thomas, 59 AD3d 783 [2009]; People v Middleton, 50 AD3d 1114 [2008], affd 12 NY3d737 [2009]; cf. People v Hoffman,62 AD3d 976 [2009]; People vVasquez, 49 AD3d 1282 [2008]).
The defendant's remaining contentions are without merit. Fisher, J.P., Dillon, Covello andDickerson, JJ., concur.