| People v Myers |
| 2011 NY Slip Op 06679 [87 AD3d 1286] |
| September 30, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Michael W.Myers, Appellant. |
—[*1] Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
Appeal from an order of the Niagara County Court (Sara S. Sperrazza, J.), dated June 30,2010. The order determined that defendant is a level three risk pursuant to the Sex OffenderRegistration 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.). We reject defendant's contention that County Court erred in assessing 10 points underrisk factor 13 on the risk assessment instrument based on his unsatisfactory conduct whileconfined. Points are properly assessed under that risk factor against "an offender . . .who receives dispositions for behavior such as attempting to contact the victim" (Sex OffenderRegistration Act: Risk Assessment Guidelines and Commentary, at 16 [2006]). Here, defendantadmitted at the SORA hearing that he sent two letters from prison to the police officer whoarrested him, threatening to kill the officer and his family. In addition, the case summary, whichwas admitted in evidence at the SORA hearing, stated that defendant had "39 Tier II infractionsand 10 serious Tier III infractions" while incarcerated. We thus conclude that the court properlyassessed the 10 points in question.
Defendant further contends that he was denied a meaningful opportunity to presentmitigating evidence at the SORA hearing concerning risk factor 13. Although the People did notprovide timely notice of their intent to seek an assessment of points under that risk factor(see Correction Law § 168-n [3]), the court granted defense counsel a briefadjournment to review the "documentary evidence" sought to be admitted by the People withrespect to risk factor 13 (see People vInghilleri, 21 AD3d 404, 405 [2005]). Defense counsel availed himself of theadjournment and proceeded with the hearing without requesting a further adjournment or anyother corrective action (see People vJordan, 31 AD3d 1196 [2006], lv denied 7 NY3d 714 [2006]), and thusdefendant is deemed to have waived his present contention concerning risk factor 13 (seegenerally People v Forshey, 298 AD2d 962, 963 [2002], lv denied 99 NY2d 558[2002], lv denied upon reconsideration 100 NY2d 561 [2003]). We note in any event thatthere was no prejudice to defendant inasmuch as he was aware prior to the SORA hearing of[*2]the nature of the evidence sought to be admitted by thePeople with respect to that risk factor. Thus, under the circumstances, defendant was notdeprived of a meaningful opportunity to present mitigating evidence (see generally People v Wheeler, 59AD3d 1007 [2009], lv denied 12 NY3d 711 [2009]; People v Warren, 42 AD3d 593,593-594 [2007], lv denied 9 NY3d 810 [2007]). Present—Scudder, P.J., Smith,Carni, Lindley and Martoche, JJ.