| People v Smith |
| 2013 NY Slip Op 00726 [103 AD3d 616] |
| February 6, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v James Smith, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Steven A. Bender and RichardLongworth Hecht of counsel), for respondent.
Appeal by the defendant from an order of the County Court, Westchester County(Cacace, J.), dated April 7, 2011, which, after a hearing, designated him a level threesexually violent offender pursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
Contrary to the defendant's contention, it was within the County Court's discretion toconsider, as reliable hearsay evidence, documents that did not strictly comply with CPLR4540 (see People vWheeler, 46 AD3d 1082 [2007]; see also People v Mingo, 12 NY3d 563 [2009]).
The County Court's designation of the defendant as a level three sexually violentoffender was supported by clear and convincing evidence (see Correction Law§ 168-n [3]; People vPettigrew, 14 NY3d 406, 408 [2010]; People v Samayoa, 96 AD3d 1031, 1032 [2012]). Contraryto the defendant's contention, the County Court did not err in assessing him 10 pointsunder risk factor 1 (see Sex Offender Registration Act: Risk AssessmentGuidelines and Commentary at 7-8 [2006] [hereinafter SORA Guidelines]), 20 pointsunder risk factor 7 (see SORA Guidelines at 15-16), and 10 points under riskfactor 13. Additionally, the defendant was properly designated a sexually violentoffender based upon his convictions of sex offenses in New Jersey (seeCorrection Law § 168-a [3]; Penal Law § 130.50).
The defendant's contention that he was deprived of his constitutional right to dueprocess of law by a delay in the commencement of the SORA proceeding is not properlybefore this Court since he failed to raise this argument before the County Court (see People v Gonzalez, 69AD3d 819 [2010]; People vRuben, 65 AD3d 1026, 1027 [2009]). Skelos, J.P., Dickerson, Chambers andHinds-Radix, JJ., concur.