| People v Daniels |
| 2011 NY Slip Op 05755 [86 AD3d 921] |
| July 1, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v John Daniels,Appellant. |
—[*1] Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
Appeal from an order of the Supreme Court, Niagara County (Richard C. Kloch, Sr., A.J.),entered April 16, 2009. The order determined that defendant is a level three risk pursuant to theSex Offender Registration Act.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Defendant appeals from an order determining that he is a level three riskpursuant to the Sex Offender Registration Act ([SORA] Correction Law § 168 etseq.). Defendant was convicted in 1980 of, inter alia, rape in the first degree (Penal Law§ 130.35 [1]) in Niagara County Court. The Judge who sentenced defendant thereafterretired, and the SORA hearing subsequently was conducted by an Acting Supreme Court Justice.Defendant failed to preserve for our review his contention that the transfer of the SORA hearingto Supreme Court was not authorized by 22 NYCRR 200.14 (see generally People v Ott, 83 AD3d 1495 [2011]). In any event, 22NYCRR 200.14 has no application to a SORA risk level determination "inasmuch as [a] SORAdetermination is not part of the criminal action" (People v Ayala, 72 AD3d 1577, 1578 [2010], lv denied 15NY3d 816 [2010]). Defendant also failed to preserve for our review his contention that theSORA determination was not authorized inasmuch as it was not made by the "sentencing court,"i.e., Niagara County Court (Correction Law § 168-n [2]). In any event, we note that SORAcontemplates that risk level determinations may be made by a court other than the "sentencingcourt" (see Correction Law § 168-o [2], [3]). To the extent that defendantcontends that Supreme Court lacked subject matter jurisdiction to preside over the SORAhearing, we conclude that defendant waived that contention. "Given that Supreme Court had thepower to hear the case, the transfer error defendant alleges is the equivalent of an improper venueclaim, which is not jurisdictional in nature and is waived if not timely raised" (People v Wilson, 14 NY3d 895,897 [2010]; see Ott, 83 AD3d at 1496), and here defendant did not timely raise thealleged transfer error inasmuch as his contention is raised for the first time on appeal.
With respect to the merits, we agree with defendant that the People failed to prove by therequisite clear and convincing evidence that the rape victim was a stranger (see generallyCorrection Law § 168-n [3]), and thus that the court erred in assessing 20 points on the risk[*2]assessment instrument (RAI) for risk factor 7. Reducingdefendant's score on the RAI by 20 points, however, does not alter his presumptive risk level (see People v Bove, 52 AD3d 1124,1125 [2008]), and there is no indication in the record that defendant presented clear andconvincing evidence of special circumstances warranting a downward departure or, indeed, thathe even requested one (see People vRatcliff, 53 AD3d 1110 [2008], lv denied 11 NY3d 708 [2008]). We thereforeconclude that the court properly determined that he is a level three risk. Present—Scudder,P.J., Smith, Peradotto, Lindley and Green, JJ.