| People v Slotman |
| 2013 NY Slip Op 08717 [112 AD3d 1332] |
| December 27, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vTimothy Slotman, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of counsel), forrespondent.
Appeal from an order of the Erie County Court (Kenneth F. Case, J.), entered May 3,2012. The order determined that defendant is a level two risk pursuant to the SexOffender Registration Act.
It is hereby ordered that the order so appealed from is unanimously modified in theinterest of justice by vacating defendant's designation as a sexually violent offender andas modified the order is affirmed without costs.
Memorandum: On appeal from an order determining that he is a level two riskpursuant to the Sex Offender Registration Act (Correction Law § 168 etseq.), defendant contends that County Court's determination is not supported by therequisite clear and convincing evidence (see § 168-n [3]). We reject thatcontention. The court properly considered statements in the case summary andpresentence report in assessing risk factor points against him inasmuch as thosestatements constituted reliable hearsay (see People v Shepard, 103 AD3d 1224, 1224 [2013], lvdenied 21 NY3d 856 [2013]; People v Perrah, 99 AD3d 1257, 1257-1258 [2012], lvdenied 20 NY3d 854 [2013]; see also People v Mingo, 12 NY3d 563, 572-573 [2009]).
Contrary to defendant's contention, the court properly assessed 20 points against himunder risk factor 4, for continuing course of sexual misconduct, despite the fact thatdefendant pleaded guilty to only one count of rape in the second degree (Penal Law§ 130.30 [1]). "[T]he court is 'not limited to the crime of conviction' " in assessingpoints for that risk factor (People v Hubel, 70 AD3d 1492, 1493 [2010]; seeSex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5[2006]). Defendant also challenges the assessment of those points on the ground that theywere not assessed based on reliable hearsay. We reject that challenge and conclude thatthe court properly considered as reliable hearsay defendant's statement in the presentencereport, as clarified by defense counsel during the hearing, that defendant had been having"inappropriate relations" with the victim for three years (see Mingo, 12 NY3d at572-573; see generally People v Chico, 90 NY2d 585, 589 [1997]). Contrary todefendant's further contention, the court also properly assessed 10 points against himunder risk factor 8, for the age at which defendant committed his first act of sexualmisconduct, based upon defendant's admission in the presentence report that he beganabusing the victim when he was 19 years old (see Mingo, 12 [*2]NY3d at 572-573; Chico, 90 NY2d at 589). Wetherefore conclude that the People met their " 'burden of proving the facts supporting therisk level classification sought by clear and convincing evidence' " (People v McDaniel, 27 AD3d1158, 1159 [2006], lv denied 7 NY3d 703 [2006]). We further concludethat, under the circumstances of this case, the court properly rejected defendant's requestfor a downward departure inasmuch as defendant failed to present clear and convincingevidence of special circumstances justifying such treatment (see id.).
Finally, defendant contends that the court incorrectly designated him a "sexuallyviolent offender" inasmuch as he was not convicted of a sexually violent offense withinthe meaning of Correction Law § 168-a (7) (b) (see § 168-a [3] [a]).Although defendant failed to preserve that contention for our review (see People v Young, 108AD3d 1232, 1232 [2013], lv denied 22 NY3d 853 [2013], reargdenied — NY3d —, 2013 NY Slip Op 94322 [2013]), we neverthelessagree with him, and we therefore modify the order accordingly. Present—Smith,J.P., Fahey, Carni, Valentino and Whalen, JJ.