| People v Carbone |
| 2011 NY Slip Op 07957 [89 AD3d 1392] |
| November 10, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v CharlesCarbone, 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.), enteredAugust 10, 2010. 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: Defendant appeals from an order determining that he is a level three risk pursuant tothe Sex Offender Registration Act (Correction Law § 168 et seq.), an upward departurefrom the presumptive level two risk pursuant to the risk assessment instrument (RAI) score. Contrary todefendant's contention, Supreme Court did not abuse its discretion in refusing to grant a thirdadjournment to enable his attorney to obtain additional records from his inmate file. Even assuming,arguendo, that additional records would have supported defendant's contention that he should not havebeen assessed points for category 12 on the RAI for refusal to participate in treatment, we concludethat his score under the RAI would nevertheless have remained at a level two (see generally People v Sherard, 73 AD3d537 [2010], lv denied 15 NY3d 707 [2010]). Furthermore, the request for the thirdadjournment was made on the day before defendant was discharged from prison, and the court wasobligated to determine his risk level prior to defendant's parole (see § 168-n [1]).
Contrary to defendant's further contention, the court's determinations that defendant engaged in acontinuous course of conduct and that the victim was less than 10 years of age at the time of the abuseare supported by the requisite clear and convincing evidence (see Correction Law §168-n [3]). That information was contained in the presentence report, which states that the 12-year-oldvictim reported during a child protective investigation that he was forced to perform oral sex ondefendant numerous times and that the abuse had occurred over a period of six years. Where, as here,the information in the presentence report is "produced based on information supplied by the victim. . . or some other knowledgeable witness under circumstances bearing indicia ofreliability," the reliable hearsay requirement is met (People v Mingo, 12 NY3d 563, 575 [2009]). The court's determinationthat defendant refused sex offender treatment also is supported by clear and convincing evidence(see § 168-n [3]), despite the [*2]evidence thatdefendant made complaints to various officials that he was "harassed" by the treatment counselor (cf. People v Kearns, 68 AD3d 1713,1714 [2009]). Indeed, defendant signed a document stating that he refused to return to sex offendercounseling at any facility "due to legali[ties]."
Finally, although we agree with defendant that the court erred in relying in part upon the duration ofthe abuse and the age of the victim in departing from the presumptive level two risk, we neverthelessconclude that the court properly determined that the upward departure was warranted. Defendant'sperception that oral sodomy between an adult and child was "normal" based upon his own experienceis not otherwise taken into consideration by the RAI, and that perception compels the conclusion thatdefendant poses an increased risk to public safety (see People v Hueber, 81 AD3d 1466 [2011], lv denied 17NY3d 701 [2011]; People v May, 77AD3d 1388 [2010]). Present—Scudder, P.J., Smith, Centra, Green and Gorski, JJ.