People v. Ensell

49 A.D.3d 1301, 852 N.Y.2d 862

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 14, 2008
• Status: Published

Opinion

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.). Contrary to the contention of defendant, County Court’s determination of his risk level is supported by the requisite clear and convincing evidence (see § 168-n [3]; People v Vacanti, 26 AD3d 732, 733 [2006], lv denied 6 NY3d 714 [2006]; People v Hamelinck, 23 AD3d 1060 [2005]). Contrary to defendant’s further contention, the case summary constitutes reliable hearsay, and the court properly considered it in determining defendant’s risk level (see People v Woods, 41 AD3d 1299 [2007], Iv denied 9 NY3d 809 [2007]; People v Vaughn, 26 AD3d 776 [2006]). Finally, we conclude that defendant waived his right to be present at the SORA hearing inasmuch as the record establishes that he signed a written waiver of that right, in which he “was advised of the hearing date, of the right to be present at the hearing, and that the hearing would be conducted in his . . . absence” (People v Porter, 37 AD3d 797 [2007]; see People v Brooks, 308 AD2d 99, 105-106 [2003], Iv denied 1 NY3d 502 [2003]). We have considered defendant’s remaining contention and conclude that it is without merit. Present—Martoche, J.P., Smith, Peradotto, Pine and Gorski, JJ.