| People v Cuesta |
| 2009 NY Slip Op 06524 [65 AD3d 1113] |
| September 15, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Danny Cuesta, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Marcia R. Kucera of counsel), forrespondent.
Appeal by the defendant from an order of the County Court, Suffolk County (Hinrichs, J.),dated October 23, 2007, which after a hearing, designated him a level three sex offenderpursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
The defendant, a teacher, pleaded guilty to rape in the third degree, two counts of criminalsexual act in the third degree, and endangering the welfare of a child, for having sexual relationswith a 15-year-old student. Pursuant to Correction Law article 6-C, a hearing was held, whereinthe court assessed the defendant 130 points and designated him a level three sex offender.
The defendant contends that, pursuant to a plea agreement entered into in Nassau County, hewas promised a level two designation, and therefore that promise should also apply to his plea inthis proceeding in Suffolk County. The defendant further contends that the court erred inassessing him points for three or more victims, abuse of a professional relationship, and lack ofsupervision after release.
There was no promise made in the Suffolk County plea proceeding regarding the designationother than the County Court advising that a hearing would be held, at which time it woulddetermine the level that the defendant was to be designated. The Nassau County plea and anyalleged promises made in that plea agreement are separate and apart from the plea agreemententered into in Suffolk County.
Further, the defendant was properly designated a level three sex offender. Contrary to thedefendant's contention, there was an abuse of a professional relationship, and the County Courtproperly assessed the defendant points for a relationship with the victim (see People v Kraus, 45 AD3d 826[2007]; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 12[Nov. 1997]).
The County Court erred in considering the statement of a former student who alleged to havehad a sexual relationship with the defendant, since it was unreliable. However, the court properlyconsidered the statement from a second former student that was reliable. Accordingly, the [*2]existence of two victims (the subject victim and the second formerstudent) was proven by clear and convincing evidence (see People v Thomas, 59 AD3d 783 [2009]). Although thedefendant should have only been assessed points for two victims and not three victims for thisfactor, the level three risk adjudication would not be altered based on the reduction of points.
The defendant's contention regarding the assessment of points for lack of supervision uponrelease is unpreserved for appellate review and, in any event, is without merit (see People v Milton, 55 AD3d1073 [2008]).
Finally, the defendant failed to establish the existence of any mitigating factors warranting adownward departure (see People vBowens, 55 AD3d 809, 810 [2008]). Spolzino, J.P., Angiolillo, Leventhal and Lott, JJ.,concur.