SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
554
KA 09-00167
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND MARTOCHE, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
ROBERT J. LAW, DEFENDANT-APPELLANT.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (DAVID M. PARKS OF COUNSEL),
FOR DEFENDANT-APPELLANT.
R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JAMES B. RITTS OF
COUNSEL), FOR RESPONDENT.
Appeal from an order of the Ontario County Court (Craig J. Doran,
J.), entered December 15, 2008. The order determined that defendant
is a level three risk pursuant to the Sex Offender Registration Act
following a redetermination hearing.
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 three risk pursuant to the Sex Offender Registration Act
([SORA] Correction Law § 168 et seq.). Defendant failed to preserve
for our review his contention that he should not have been assessed 10
points under risk factor 1, for the use of forcible compulsion (see
generally People v Smith, 17 AD3d 1045, lv denied 5 NY3d 705). In any
event, that contention lacks merit inasmuch as defendant pleaded
guilty to sexual abuse in the first degree under Penal Law § 130.65
(1), a necessary element of which is that he acted with forcible
compulsion. Because “[f]acts previously . . . elicited at the time of
entry of a plea of guilty shall be deemed established by clear and
convincing evidence and shall not be relitigated” for purposes of a
SORA determination (Correction Law § 168-n [3]), County Court properly
assessed points for the use of forcible compulsion.
Defendant further contends that the court erred in assessing 25
points under risk factor 2 on the ground that he engaged the victim in
sexual contact consisting of “sexual intercourse, oral sexual conduct,
anal sexual conduct, or aggravated sexual abuse.” We reject that
contention. The court’s finding under that risk factor was based on
the victim’s statement to the police, in which she indicated that one
of the instances of abuse by defendant involved an act of sexual
intercourse. The court was required to review the victim’s statement
(see Correction Law § 168-n [3]), and thus the court received the
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KA 09-00167
requisite clear and convincing evidence to support the assessment of
25 points under risk factor 2 (see generally id.). To the extent that
defendant contends that the absence of any indicted charges alleging
acts of intercourse constituted “strong evidence that [such] offense
[conduct] did not occur” (Sex Offender Registration Act: Risk
Assessment Guidelines and Commentary, at 5 [2006]), we note that
defendant could not have been charged for such conduct in New York
because it allegedly occurred in Texas (see CPL 20.20).
Because defendant’s evidentiary objection to a letter written by
the victim was made on a different ground than the “unreliable
hearsay” ground he raises on appeal, his contention that the court
erred in admitting that letter in evidence is not preserved for our
review. In any event, defendant’s present contention lacks merit.
The court was required to consider the letter because it constituted a
“victim’s statement” within the meaning of Correction Law § 168-n (3).
Moreover, the letter constituted “reliable hearsay” (id.) because,
although it was unsworn, it was not “equivocal, inconsistent with
other evidence, or . . . dubious in light of other information in the
record” (People v Mingo, 12 NY3d 563, 577). Indeed, inasmuch as the
letter was a “victim’s statement” and “reliable hearsay,” the court
was not “free to disregard it” (id.; see § 168-n [3]).
Entered: April 27, 2012 Frances E. Cafarell
Clerk of the Court