| People v Scott |
| 2010 NY Slip Op 02214 [71 AD3d 1417] |
| March 19, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v John Scott,Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Michelle L. Cianciosa of counsel), forrespondent.
Appeal from an order of the Supreme Court, Erie County (John L. Michalski, A.J.), enteredJanuary 20, 2009. 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: On appeal from an order determining that he is a level three risk pursuant tothe Sex Offender Registration Act (SORA) (Correction Law § 168 et seq.),defendant contends that Supreme Court erred in making its determination without requiring thePeople to produce the presentence report. We reject that contention. In making its determination,the court properly relied on the case summary, which contained reliable hearsay (see People v Marrocco, 41 AD3d1297 [2007], lv denied 9 NY3d 807 [2007]), as well as the risk assessmentinstrument. The court did not rely on the presentence report, nor did defendant request anadjournment pursuant to Correction Law § 168-n (3) in order to obtain the presentencereport, which, as the People contended, was in the possession and control of the ProbationDepartment. Thus, defendant's contention that the court erred in proceeding with the SORAhearing and in making its determination in the absence of the presentence report is not preservedfor our review (see generally People vStaples, 37 AD3d 1099 [2007], lv denied 8 NY3d 813 [2007]).
Contrary to the further contention of defendant, the court did not err in assessing 20 pointsagainst him under the risk factor for a continuing course of sexual misconduct, which wasrecommended by the Board of Examiners of Sex Offenders. Although that factor was not anelement of the crimes of which he was convicted, the court was not limited to considering onlysuch crimes (see Correction Law § 168-n [3]; People v Feeney, 58 AD3d 614, 615 [2009]). Also contrary todefendant's contention, we conclude that the assessment of points under that risk factor issupported by clear and convincing evidence (see People v Richards, 50 AD3d 1329 [2008], lv denied 10NY3d 715 [2008]). The record establishes that the incident upon which defendant's conviction ofsexual abuse in the second degree (Penal Law § 130.60 [2]) is based was not the firstsexual encounter between defendant and the victim. Finally, based upon our review of the recordas a whole, we conclude that the court did not abuse its discretion in determining that [*2]there were no circumstances warranting a downward departurefrom the presumptive risk level (seePeople v Kaminski, 38 AD3d 1127, 1128 [2007], lv denied 9 NY3d 803[2007]). Present—Scudder, P.J., Centra, Carni and Pine, JJ.