| People v Carter |
| 2013 NY Slip Op 03360 [106 AD3d 1202] |
| May 9, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JamesR. Carter, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
McCarthy, J. Appeal from an order of the County Court of Broome County (Smith,J.), entered January 26, 2011, which classified defendant as a risk level III sex offender, asexually violent offender and a predicate sex offender pursuant to the Sex OffenderRegistration Act.
In 1991, defendant pleaded guilty to one count of sodomy in the first degree insatisfaction of an indictment charging him with numerous sex crimes. The chargesstemmed from defendant and a codefendant having repeated sexual contact with eightyoung boys over a period of several months. Defendant was thereafter sentenced,pursuant to the plea agreement, to prison terms of 8 to 24 years for the sodomyconviction and 1 to 6 years on an unrelated conviction of promoting prison contraband,with the sentences to run consecutively.
In 2010, in anticipation of defendant's release from prison, the Board of Examinersof Sex Offenders prepared a risk assessment instrument with a score of 190 points, whichpresumptively classified defendant as a risk level III sex offender. The Board alsorecommended that defendant be classified as a sexually violent offender and a predicatesex offender. Prior to a hearing on his classification, defendant moved to dismiss theproceedings on the ground that County Court lacked jurisdiction to adjudicate him as asex offender, claiming that his 1991 conviction was invalid. County Court denied themotion. Following a risk assessment hearing, the court reduced defendant's total riskfactor score to 175 points, still within the presumptive risk level III classification. Thecourt also classified defendant as a sexually violent offender and a predicate sex offenderand denied his request for a downward departure. Defendant appeals.[*2]
Initially, defendant's claims challenging thepropriety of his 1991 judgment of conviction are not properly before us and will not beaddressed (see People vClavette, 96 AD3d 1178, 1179 [2012], lv denied 20 NY3d 851 [2012];People v Wright, 53 AD3d963, 963 [2008], lv denied 11 NY3d 710 [2008]; see also People v Ayala, 72AD3d 1577, 1578 [2010], lv denied 15 NY3d 816 [2010]).[FN1]Defendant also challenges County Court's designation of him as a risk level III sexoffender and a predicate sex offender.[FN2]We note that County Court failed to issue a written order setting forth its findings of factand conclusions of law upon which its determinations are based, as required byCorrection Law § 168-n (3) (see People v Kennedy, 79 AD3d 1470, 1470 [2010]; People v Burke, 68 AD3d1175, 1177 [2009]). The court's execution of the standardized form designatingdefendant's risk level classification did not satisfy this requirement (see People vKennedy, 79 AD3d at 1470; People v Marr, 20 AD3d 692, 693 [2005]). Remittal is notrequired, however, inasmuch as County Court's oral findings regarding presumptivelyclassifying defendant as a risk level III sex offender with a score of 175 points are clear,supported by the record and sufficiently detailed to permit intelligent review (see People v Roberts, 54AD3d 1106, 1106-1107 [2008], lv denied 11 NY3d 713 [2008]; People v Joslyn, 27 AD3d1033, 1035 [2006]).
Turning to the merits, we reject defendant's contention that he was improperlyassessed 30 points for having three or more victims and 20 points for duration of theoffense. Although defendant pleaded guilty to a single count of sodomy in the firstdegree, "County Court was not limited to the crime to which defendant pleaded guilty butcould, instead, consider reliable hearsay evidence in the record" (People v Thomas, 59 AD3d783, 784 [2009]; accord People v Clavette, 96 AD3d at 1180). Documentsthat have been found to constitute such reliable hearsay include sworn statements to thepolice, the case summary, risk assessment instrument and presentence investigationreport (hereinafter PSI) (seePeople v McFall, 93 AD3d 962, 963 [2012]; People v Parker, 62 AD3d 1195, 1196 [2009], lvdenied 13 NY3d 704 [2009]). Inasmuch as the case summary reveals that defendantvictimized eight boys and engaged in a continuing course of sexualcontact—including oral and anal sexual conduct—with at least two of thosevictims on several occasions over a four-month period, clear and convincing evidencesupports County Court's assessment of points for these risk factors (see People v Madera, 100AD3d 1111, 1112 [2012]; People v Rogowski, 96 AD3d 1113, 1114[2012]).[FN3][*3]
Defendant's challenge to the assessment of 10points for the recency of his prior offense is also without merit. To be assessed points forthe recency of a prior offense, defendant must have "a prior felony or sex crime withinthree years of the instant offense" (Sex Offender Registration Act: Risk AssessmentGuidelines and Commentary at 14 [2006]). The three-year time period "should bemeasured without regard to the time during which the offender was incarcerated orcivilly committed" (Sex Offender Registration Act: Risk Assessment Guidelines andCommentary at 14 [2006]). Here, the case summary reveals that defendant was convictedof a felony in Tennessee in 1988, was incarcerated until February 1990,[FN4]and committed the instant offenses beginning in November 1990. Therefore, clear andconvincing evidence supports the assessment of points for the recency of defendant'sprior offense.
Inasmuch as defendant failed to establish by clear and convincing evidence that therewere mitigating factors not accounted for by the risk assessment guidelines that wouldwarrant a downward departure from his presumptive risk level, County Court properlydenied his request for such a departure (see People v Kotzen, 100 AD3d 1162, 1162-1163 [2012],lv denied 20 NY3d 860 [2013]; People v Barnett, 71 AD3d 1296, 1297 [2010]; People v McCormick, 21AD3d 1221, 1222 [2005]).[FN5]We agree with defendant and the People, however, that County Court's designation ofdefendant as a predicate sex offender should be vacated as the designation is notsupported by the record or the court's oral findings.
Mercure, J.P., Lahtinen and Garry, JJ., concur. Ordered that the order is modified, onthe law, without costs, by vacating so much thereof as classified defendant as a predicatesex offender, and, as so modified, affirmed.
Footnote 1: Defendant did notappeal his 1991 conviction. In 2005, County Court denied defendant's CPL 440.10motion to vacate his judgment of conviction, and this Court denied leave to appeal. Thatmotion was based on the same grounds that he now raises in his claim that the courtlacked jurisdiction.
Footnote 2: Defendant does notchallenge his designation as a sexually violent offender, which was required due to hisconviction under Penal Law § 130.50 (see Correction Law § 168-a[3] [a] [i]; [7] [b]).
Footnote 3: The PSI provided muchmore detail regarding defendant's offenses, including the course of conduct and multiplevictims. The PSI is included in the record but, due to County Court's failure to issue awritten order, it is unclear whether the court considered that report in reaching itsdetermination. Although information in the PSI supports the court's conclusion, therecord is sufficient even without considering the PSI.
Footnote 4: The PSI indicates thatdefendant informed the reporter that he was released in January 1990. Regardless ofwhether he was released in January or February, the recency points were appropriatelyassessed.
Footnote 5: Although defendantnow argues that County Court applied the wrong standard in considering his downwarddeparture—namely, that the standard for a downward departure should bepreponderance of the evidence rather than clear and convincing evidence (see People v Wyatt, 89 AD3d112, 127-128 [2011], lv denied 18 NY3d 803 [2012]; but see People v Moss, 105AD3d 1099 [2013]; People v Kotzen, 100 AD3d at 1162-1163)—thisargument is unpreserved for our review considering that defendant acknowledged duringthe hearing that clear and convincing evidence was the proper standard.