SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1134
KA 12-01479
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
WILLIAM PICHCUSKIE, DEFENDANT-APPELLANT.
DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF
COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM PICHCUSKIE, DEFENDANT-APPELLANT PRO SE.
MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (LAURA T. BITTNER OF
COUNSEL), FOR RESPONDENT.
Appeal from an order of the Niagara County Court (Sara S. Farkas,
J.), dated July 13, 2012. The order determined that defendant is a
level three 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 oral decision determining
that he is a level three risk pursuant to the Sex Offender
Registration Act ([SORA] Correction Law § 168 et seq.). In the
exercise of our discretion, we deem the appeal as properly taken from
the order that was subsequently entered (see CPLR 5520 [c]; see
generally Adams v Daughtery, ___ AD3d ___, ___ [Oct. 4, 2013]).
Contrary to defendant’s contention in his main brief, County Court
properly determined after a SORA hearing that an upward departure was
warranted based upon a videotaped statement of a victim and the
affidavit of another person who described defendant’s victimization of
him when he was between the ages of 12 and 16. We reject defendant’s
contention in his main brief that the affidavit was improperly
admitted at the hearing because he was never charged with the conduct
specified in the affidavit, which we note was conduct that was
reported after the statute of limitations had run. Crawford v
Washington (541 US 36), concerning a defendant’s right to confront
witnesses, does not apply in SORA hearings (see People v Bolton, 50
AD3d 990, 990, lv denied 11 NY3d 701; People v Dort, 18 AD3d 23, 25,
lv denied 4 NY3d 885), and an out-of-court statement of a victim
constitutes reliable hearsay in SORA hearings (see generally People v
Mingo, 12 NY3d 563, 572-574). We reject defendant’s further
contention in his main and pro se supplemental briefs that the People
failed to present clear and convincing evidence to support the
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KA 12-01479
assessment of 20 points against him for fostering a relationship with
the victim in the videotaped statement for the purpose of victimizing
him. That assessment of points is supported by the reliable hearsay
contained in the victim’s videotaped statement admitted at the hearing
(see generally id. at 572-573). We reject defendant’s contention in
his pro se supplemental brief that he was denied effective assistance
of counsel at the SORA hearing (see People v Rotterman, 96 AD3d 1467,
1468, lv denied 19 NY3d 813; People v Bowles, 89 AD3d 171, 181, lv
denied 18 NY3d 807; see generally People v Baldi, 54 NY2d 137, 147).
Finally, defendant’s contention in his pro se supplemental brief that
he should be a level one sex offender is improperly raised for the
first time on appeal and we therefore do not address it (see People v
Windham, 10 NY3d 801, 802).
Entered: November 8, 2013 Frances E. Cafarell
Clerk of the Court