People v. Case

298 A.D.2d 929, 748 N.Y.S.2d 90, 2002 N.Y. App. Div. LEXIS 9139

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 1, 2002
• Status: Published

Opinion

—Appeal from a judgment of Genesee County Court (Noonan, J.), entered April 9, 2001, convicting defendant upon his plea of guilty of sodomy in the third degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him upon his plea of guilty of sodomy in the third degree (Penal Law § 130.40 [former (2)]), the sole contention of defendant is that County Court erred in determining that he is a “level three” risk under the Sex Offender Registration Act ([SORA] Correction Law § 168 et seq.). Defendant concedes that he was convicted of two sex offenses against minors within a three-month period, but contends that the court erred in considering the first of the two convictions in determining his risk level because he had not yet been convicted of the first offense at the time he committed the second offense. We reject that contention. “In enacting SORA, the Legislature focused on The danger of recidivism posed by sex offenders’ ” (People v Wroten, 286 AD2d 189, 196, lv denied 97 NY2d 610) and, in making its determination pursuant to SORA, “the court shall review * * * any relevant materials and evidence submitted by the sex offender and the district attorney” (§ 168-n [3]). Here, defendant had been convicted of the first sex offense at the time the court determined his risk level following his conviction of the second offense, and thus the court properly considered the first sex offense in making its determination. Present — Pigott, Jr., P.J., Green, Hayes, Kehoe and Gorski, JJ.