| People v Gardiner |
| 2012 NY Slip Op 01020 [92 AD3d 1228] |
| February 10, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v David L.Gardiner, Appellant. |
—[*1] David L. Gardiner, defendant-appellant pro se. William J. Fitzpatrick, District Attorney, Syracuse (Stefanie Gruber, Victoria M. White ofcounsel), for respondent.
Appeal from an order of the Onondaga County Court (Joseph E. Fahey, J.), enteredNovember 16, 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 riskpursuant to the Sex Offender Registration Act ([SORA] Correction Law § 168 etseq.). We reject defendant's contention that County Court erred in assessing 30 points againsthim under risk factor 3, for having three or more victims. Defendant was charged with sexuallyabusing three children, including his 11-year-old daughter. Although defendant pleaded guiltyonly to those counts of the indictment relating to the abuse of his daughter, it is well settled that,in determining the number of victims for SORA purposes, the hearing court is not limited to thecrime of which defendant was convicted (see Sex Offender Registration Act: RiskAssessment Guidelines and Commentary, at 5 [2006]; § 168-n [3]; People v Callan, 62 AD3d 1218,1218-1219 [2009]). Here, in making its determination, the court was entitled to consider "reliablehearsay evidence," including the case summary, which supported the court's determination as tothe number of victims (§ 168-n [3]; see People v Mingo, 12 NY3d 563, 572-573 [2009]; People v Baker, 57 AD3d 1472[2008], lv denied 12 NY3d 706 [2009]).
Defendant's contention that the court should have granted a downward departure to a leveltwo risk is not preserved for our review because defendant did not request a downward departure(see People v Ratcliff, 53 AD3d1110 [2008], lv denied 11 NY3d 708 [2008]). Finally, contrary to the contentionraised by defendant in his pro se supplemental brief, the court properly assessed 25 points againsthim under risk factor 2, for having deviate sexual intercourse with at least one of the victims.Although defendant was not convicted of having deviate sexual intercourse with his daughter, thecase summary states that he had deviate sexual intercourse with the other two [*2]victims, and the indictment charges him with having deviate sexualintercourse with one of them. Moreover, the indictment was presumably based upon the victims'grand jury testimony, which also constitutes reliable hearsay (see People v Howard, 52 AD3d 273 [2008], lv denied 11NY3d 706 [2008]). Present—Scudder, P.J., Centra, Peradotto, Lindley and Martoche, JJ.