| People v Law |
| 2012 NY Slip Op 03343 [94 AD3d 1561] |
| April 27, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Robert J. Law,Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (James B. Ritts of counsel), forrespondent.
Appeal from an order of the Ontario County Court (Craig J. Doran, J.), entered December 15,2008. The order determined that defendant is a level three risk pursuant to the Sex OffenderRegistration Act following a redetermination hearing.
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 failed to preserve for our review his contention that he should not have beenassessed 10 points under risk factor 1, for the use of forcible compulsion (see generally People v Smith, 17 AD3d1045 [2005], lv denied 5 NY3d 705 [2005]). In any event, that contention lacksmerit inasmuch as defendant pleaded guilty to sexual abuse in the first degree under Penal Law§ 130.65 (1), a necessary element of which is that he acted with forcible compulsion.Because "[f]acts previously . . . elicited at the time of entry of a plea of guilty shallbe deemed established by clear and convincing evidence and shall not be relitigated" for purposesof a SORA determination (Correction Law § 168-n [3]), County Court properly assessedpoints for the use of forcible compulsion.
Defendant further contends that the court erred in assessing 25 points under risk factor 2 onthe ground that he engaged the victim in sexual contact consisting of "sexual intercourse, oralsexual conduct, anal sexual conduct, or aggravated sexual abuse." We reject that contention. Thecourt's finding under that risk factor was based on the victim's statement to the police, in whichshe indicated that one of the instances of abuse by defendant involved an act of sexualintercourse. The court was required to review the victim's statement (see Correction Law§ 168-n [3]), and thus the court received the requisite clear and convincing evidence tosupport the assessment of 25 points under risk factor 2 (see generally id.). To the extentthat defendant contends that the absence of any indicted charges alleging acts of intercourseconstituted "strong evidence that [such] offense [conduct] did not occur" (Sex OffenderRegistration Act: Risk Assessment Guidelines and Commentary, at 5 [2006]), we note thatdefendant could not have been charged for such conduct in New York because it allegedlyoccurred in Texas (see CPL [*2]20.20).
Because defendant's evidentiary objection to a letter written by the victim was made on adifferent ground than the "unreliable hearsay" ground he raises on appeal, his contention that thecourt erred in admitting that letter in evidence is not preserved for our review. In any event,defendant's present contention lacks merit. The court was required to consider the letter becauseit constituted a "victim's statement" within the meaning of Correction Law § 168-n (3).Moreover, the letter constituted "reliable hearsay" (id.) because, although it was unsworn,it was not "equivocal, inconsistent with other evidence, or . . . dubious in light ofother information in the record" (Peoplev Mingo, 12 NY3d 563, 577 [2009]). Indeed, inasmuch as the letter was a "victim'sstatement" and "reliable hearsay," the court was not "free to disregard it" (id.; see§ 168-n [3]). Present—Scudder, P.J., Centra, Lindley, Sconiers and Martoche, JJ.