People v. Ferguson

Appellate Division of the Supreme Court of New York

People v. Ferguson

39 A.D.3d 1258, 833 N.Y.S.2d 806

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 20, 2007

StatusPublished

This text of 39 A.D.3d 1258 (People v. Ferguson) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Ferguson, 39 A.D.3d 1258, 833 N.Y.S.2d 806 (N.Y. Ct. App. 2007).

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Opinion

Appeal from an order of the Monroe County Court (John J. Connell, J.), entered September 12, 2005. 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 be and the same hereby 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 (Correction Law § 168 et seq.). Contrary to defendant’s contention, County Court did not err in assessing 10 points for sexual misconduct while confined. The case summary states that, on February 4, 2005, defendant was cited for tier II infractions for, inter alia, “Lewd Exposure.” 7 NYCRR 270.2 (B) (2) (in) provides that an inmate shall not intentionally expose “the private parts of his or her body” in the presence of an employee except for an authorized purpose. The court rejected the explanation of defendant that he was using the bathroom facilities while a female employee was within sight, and there is no basis in the record before us to disturb that determination. We note that the court reduced the score on the risk assessment instrument from 145 to 110, and we conclude that the court’s determination that defendant is a level three risk is supported by clear and convincing evidence (see People v Vacanti, 26 AD3d 732, 733 [2006], lv denied 6 NY3d 714 [2006]). Present—Scudder, P.J., Centra, Lunn, Peradotto and Pine, JJ.

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Appeal from an order of the Monroe County Court (John J. Connell, J.), entered September 12, 2005. 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 be and the same hereby 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 (Correction Law § 168 et seq.). Contrary to defendant’s contention, County Court did not err in assessing 10 points for sexual misconduct while confined. The case summary states that, on February 4, 2005, defendant was cited for tier II infractions for, inter alia, “Lewd Exposure.” 7 NYCRR 270.2 (B) (2) (in) provides that an inmate shall not intentionally expose “the private parts of his or her body” in the presence of an employee except for an authorized purpose. The court rejected the explanation of defendant that he was using the bathroom facilities while a female employee was within sight, and there is no basis in the record before us to disturb that determination. We note that the court reduced the score on the risk assessment instrument from 145 to 110, and we conclude that the court’s determination that defendant is a level three risk is supported by clear and convincing evidence (see People v Vacanti, 26 AD3d 732, 733 [2006], lv denied 6 NY3d 714 [2006]). Present—Scudder, P.J., Centra, Lunn, Peradotto and Pine, JJ.

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Bluebook (online)

39 A.D.3d 1258, 833 N.Y.S.2d 806, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-ferguson-nyappdiv-2007.

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