| People v Roney |
| 2011 NY Slip Op 00118 [80 AD3d 909] |
| January 13, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v ChristopherRoney, Appellant. |
—[*1] Beth G. Cozzolino, District Attorney, Hudson (H. Neal Conolly of counsel), forrespondent.
Kavanagh, J. Appeal from an order of the County Court of Columbia County (Nichols, J.),entered September 1, 2009, which classified defendant as a risk level three sex offender pursuantto the Sex Offender Registration Act.
In December 2000, defendant was arrested after he had exposed himself and masturbated infront of three children outside an elementary school in Arizona. He subsequently pleaded guiltyto indecent exposure and was sentenced to lifetime probation with a condition that he receive sexoffender counseling. After defendant was found to have violated the terms of probation, heelected to serve one year in jail and forego further probation supervision. At some pointthereafter, defendant relocated to Columbia County and, after a hearing, County Court adoptedthe recommendation of the Board of Examiners of Sex Offenders that he be classified as a risklevel three sex offender (see Correction Law art 6-C). Defendant now appeals.
Initially, defendant argues that the People failed to show by competent evidence that theArizona crime for which he stands convicted qualifies as an offense requiring that he register as asex offender in New York. However, it is for the Board, not County Court, to determine ifdefendant qualifies as a registered sex offender, and "[a] proceeding pursuant to CPLR article 78is the only proper vehicle by which to . . . challenge" such an administrativedetermination (People v Rendace,58 AD3d 821, 821 [2009]). Once the Board determined that defendant was a [*2]registered sex offender, County Court is required to determine therisk level classification to be assigned in light of that designation (see People v Geier, 56 AD3d 539,540 [2008]; People v Pride, 37AD3d 957, 958 [2007], lv denied 8 NY3d 812 [2007]; People v Carabello,309 AD2d 1227, 1228 [2003]).
As for County Court's finding that he qualifies as a risk level three sex offender, defendanttakes issue with its decision to add 30 points to the risk assessment instrument, or 10 points foreach child who observed his criminal conduct. Specifically, defendant argues that, since he didnot have any physical contact with these three children, they were not victimized by him andshould not be counted as such in his risk level assessment. It was not necessary for defendant tohave had physical contact with these children for them to have been victimized by this offense.The potential harm to them by being exposed to this conduct is self-evident. Moreover, the factthat defendant intended that these children witness this offense was established by evidenceintroduced at the hearing that, prior to this incident, defendant had been told by school authoritiesthat he was not permitted on school grounds when children were present (see CorrectionLaw § 168-n; see generally Peoplev Thomas, 59 AD3d 783, 784 [2009]; People v McElhearn, 56 AD3d 978, 979 [2008], lv denied13 NY3d 706 [2009] [predatory nature of disseminating indecent material to two young victimssupported risk level three classification]).
Defendant also argues that insufficient evidence was presented at the hearing upon whichCounty Court could assess 10 points on the risk assessment instrument because he was a paroleviolator. Specifically, defendant contends that the sentencing memorandum from Arizona uponwhich County Court based this determination did not identify, with any specificity, the "nature"of his probation violation and, absent some evidence establishing how he violated probation, hisstatus as a probation violator should not have been included in his risk level assessment. Whileno evidence was produced at the hearing as to what led to the determination that defendant hadviolated the terms of his probation, there is no doubt that his probation in Arizona was revokedbecause he violated its terms and conditions and, as a result, was incarcerated for the remainderof his sentence. As such, defendant's status as a parole violator was properly included by CountyCourt in its assessment of his risk level classification as a registered sex offender (see People v Bateman, 59 AD3d788, 790 [2009]).
Spain, J.P., Lahtinen, Stein and Garry, JJ., concur. Ordered that the order is affirmed, withoutcosts.