SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
228
KA 13-01903
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND WHALEN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
GORDY A. AKINPELU, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF
COUNSEL), FOR DEFENDANT-APPELLANT.
LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF
COUNSEL), FOR RESPONDENT.
Appeal from an order of the Genesee County Court (Robert C.
Noonan, J.), entered September 13, 2013. The order determined that
defendant is a level two risk pursuant to the Sex Offender
Registration Act.
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 two risk pursuant to the Sex Offender Registration Act
([SORA] Correction Law § 168 et seq.). At the SORA hearing,
defendant’s attorney informed County Court that he reviewed the risk
assessment instrument with defendant and that he and defendant would
“not be contesting those scores.” The court thus adopted the
recommendation of the Board of Examiners of Sex Offenders, which
assessed 90 points against defendant, making him a presumptive level
two risk. Defendant did not request a downward departure, and the
court determined that he was a level two risk. Defendant now contends
that he was not afforded due process at the hearing because, among
other reasons, the court did not conduct a sufficient inquiry to
determine whether he knowingly, intelligently and voluntarily waived
his right to contest the level two risk designation. As defendant
concedes, however, his contention is unpreserved for our review
because he did not assert at the hearing that his due process rights
were being violated (see People v Kyle, 64 AD3d 1177, 1178, lv denied
13 NY3d 709; see also People v Costas, 46 AD3d 475, 476, lv denied 10
NY3d 716; People v Gliatta, 27 AD3d 441, 441). In any event, “the due
process protections required for a risk level classification
proceeding ‘are not as extensive as those required in a plenary
criminal or civil trial’ ” (Doe v Pataki, 3 F Supp 2d 456, 470; see
People v Erb, 59 AD3d 1020, 1020-1021), and defendant has cited no
authority to support his contention that “a personal allocution” is
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KA 13-01903
required in order to waive the right to a SORA hearing (People v
Dexter, 21 AD3d 403, 404, lv denied 5 NY3d 716; see Costas, 46 AD3d at
476).
We have reviewed defendant’s remaining contentions and conclude
that none warrants reversal or modification.
Entered: March 27, 2015 Frances E. Cafarell
Clerk of the Court