Appeal from an order of the Supreme Court, Erie County (M. William Boiler, A.J.), entered April 30, 2007. 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 order determining
Contrary to the contention of defendant, he was not denied his right to due process based on the nine-year delay between his conditional release in 1998 and his final SORA determination in 2007. It is well settled that SORA is regulatory rather than criminal in nature and is not intended to serve as a form of punishment (see People v Stevens, 91 NY2d 270, 274-275 [1998]; People v Clark, 261 AD2d 97, 100 [2000], lv denied 95 NY2d 833 [2000]). Although pursuant to Correction Law § 168-n (2) the court shall make a SORA risk level determination within “thirty calendar days prior to the discharge, parole or release” of the sex offender, Correction Law § 168-Z (8) provides that “[a] failure by ... a court to render a determination within the time period specified in this article shall not affect the obligation of the sex offender to register . . . under , this article nor shall such failure prevent a court from making a determination regarding the sex offender’s level of notification.” Here, the court’s nine-year delay in determining defendant’s risk level based on the 1987 conviction was beyond the statutory time period, but we conclude that defendant was not denied his right to due process inasmuch as the delay was occasioned by his rearrest and subsequent conviction on another rape charge. Thus, the delay was not “so outrageously arbitrary &s to constitute gross abuse of governmental authority” (People v Meyers, 16 Misc 3d 115, 118 [2007]; see generally County of Sacramento v Lewis, 523 US 833, 845-847 [1998]).
We agree with defendant that the court erred in relying on his subsequent 1999 conviction to invoke a presumptive over
We have reviewed defendant’s remaining contentions and conclude that they are without merit. Present—Martoche, J.P., Smith, Centra, Lunn and Pine, JJ.