| People v Jewell |
| 2014 NY Slip Op 05275 [119 AD3d 1446] |
| July 11, 2014 |
| Appellate Division, Fourth Department |
[*1]
| 1 The People of the State of New York, Respondent, vThomas W. Jewell, Appellant. |
Charles A. Marangola, Moravia, for defendant-appellant.
Jon E. Budelmann, District Attorney, Auburn (Carl J. Rosenkranz of counsel), forrespondent.
Appeal from an order of the Cayuga County Court (Mark H. Fandrich, A.J.), enteredJune 14, 2013. The order, among other things, determined that defendant is a level threerisk pursuant to the Sex Offender Registration Act.
It is hereby ordered that the order so appealed from is unanimously affirmed withoutcosts.
Memorandum: Defendant appeals from an order determining that he is a level threerisk pursuant to the Sex Offender Registration Act ([SORA] Correction Law§ 168 et seq.). As a preliminary matter, we note that defendant didnot preserve for our review his contention that County Court improperly considered thegrand jury testimony of the victim and the presentence report because he failed to objectat the hearing to the court's consideration of those materials, despite the court's explicitreliance thereon. In any event, it is well settled that a court may consider reliable hearsay,including grand jury testimony and presentence reports (see People v Mingo, 12 NY3d563, 572-573 [2009]; People v Perrah, 99 AD3d 1257, 1257-1258 [2012], lvdenied 20 NY3d 854 [2012]). Moreover, no foundation testimony or evidence isrequired with respect to a presentence report or grand jury minutes (see Mingo,12 NY3d at 573). We further conclude that the victim's grand jury testimony was the typeof "victim[ ] statement" that the court is required to consider in making its determinationwhether offered by either of the parties or not (Correction Law § 168-n [3];People v Law, 94 AD3d1561, 1563 [2012], lv denied 19 NY3d 809 [2012]). We also conclude that,inasmuch as the court presided over defendant's criminal proceeding, the presentencereport and the grand jury minutes were part of the court's official file, and the court "wasempowered to contemplate facts" elicited during that previous proceeding (People v Fredenburg, 27 AD3d970, 970 [2006]; see § 168-n [3]).
We reject defendant's contention that the court failed to make adequate writtenfindings of fact supporting its determination that defendant is a level three risk. Here,"the court's 'oral findings are supported by the record and sufficiently detailed to permitintelligent review; thus, remittal is not required despite defendant's accurate assertionregarding the court's failure to render [a written] order setting forth the findings of fact. . . upon which its determination is based' " (People v Gosek, 98 AD3d1309, 1310 [2012]).
[*2] Contrary todefendant's contention, the court did not err in assessing 25 points under risk factor 2 inthe risk assessment instrument, for sexual contact with the victim, despite the fact thatdefendant pleaded guilty to two counts of attempted criminal sexual act in the seconddegree (Penal Law §§ 110.00, 130.45). "In assessing defendant's risklevel . . . the court is 'not limited to the crime of conviction' " (People v Hubel, 70 AD3d1492, 1493 [2010]; see Sex Offender Registration Act: Risk AssessmentGuidelines and Commentary at 5 [2006]). Here, the People met their burden ofestablishing by clear and convincing evidence, including reliable hearsay evidence suchas the victim's grand jury testimony, the case summary, and the presentence investigationreport, that defendant engaged in oral sexual conduct with the victim (see Hubel,70 AD3d at 1493; see generally Mingo, 12 NY3d at 572-573). We also rejectdefendant's contention that the court erred in assessing 20 points under risk factor 4, forcontinuing course of sexual misconduct. Again, contrary to defendant's contention, "[t]hecourt is 'not limited to the crime of conviction' in assessing points for that risk factor" (People v Slotman, 112 AD3d1332, 1333 [2013] [internal quotation marks omitted]; see Risk AssessmentGuidelines and Commentary at 5). The reliable hearsay evidence presented by the Peopleestablished that defendant engaged in two or more acts of sexual contact with the victim,at least one of which was an act of oral sexual contact, which were separated in time byat least 24 hours (see Risk Assessment Guidelines and Commentary at 10).Contrary to defendant's further contention, the court properly assessed 10 points underrisk factor 12, for failing to genuinely accept responsibility. The People established thatdefendant blamed the victim, " 'minimized the underlying sexual offense[,] and. . . denied that he performed the criminal sexual act [that] formed the basisfor the conviction' during an interview with the Probation Department" (People v Wilson, 117 AD3d1557, 1557 [2014]; seePeople v Baker, 57 AD3d 1472, 1473 [2008], lv denied 12 NY3d 706[2009]). We thus conclude that "the People established by clear and convincing evidencethat defendant 'fail[ed] to genuinely accept responsibility for his conduct as required bythe risk assessment guidelines' " (Wilson, 117 AD3d at 1557 [internalquotation marks omitted]).
Defendant's constitutional challenge to the court's assessment of 15 points under riskfactor 14, for being released without official supervision, is not properly before usbecause there is no indication in the record that the Attorney General was given therequisite notice (see Executive Law § 71). In any event, it is wellestablished that "a SORA risk-level determination is not part of a defendant's sentence. . . Rather, it is a collateral consequence of a conviction for a sex offensedesigned not to punish, but . . . to protect the public" (People v Windham, 10 NY3d801, 802 [2008]).
Finally, contrary to defendant's contention, the remoteness of his prior felonyconviction is adequately taken into account by the risk assessment instrument andtherefore is not, as a matter of law, a mitigating factor to be considered by the court indeparting from the presumptive risk level (see People v Wyatt, 89 AD3d 112, 130-131 [2011], lvdenied 18 NY3d 803 [2012]). Present—Smith, J.P., Centra, Carni, Valentinoand Whalen, JJ.