People v. Gaito

28 A.D.3d 1018, 813 N.Y.S.2d 273

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 27, 2006
• Status: Published

Opinion

Carpinello, J.

Appeal from an order of the County Court of Rensselaer County (McGrath, J.), entered December 6, 2005, which classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act.

In 1989, defendant was convicted for use of a child in a sexual performance (eight counts) and sodomy in the second degree stemming from his sexual encounters with two underage females. In 1997, he was determined to be a risk level III sex offender but thereafter requested a redetermination hearing pursuant to Doe v Pataki (3 F Supp 2d 456 [1998]). Following that hearing, defendant was again classified as a risk level III sex offender. He now appeals.

We reject defendant’s contention that County Court erroneously classified him. The case summary, which constituted clear and convincing evidence of the risk level assessment (see People v Dickison, 24 AD3d 980 [2005]; People v Arotin, 19 AD3d 845, 847 [2005]; People v Dorato, 291 AD2d 580, 581 [2002]), supports County Court’s determination that defendant effectuated a relationship with his underage victims for the purpose of subjecting them to sexual abuse, had a history of drug and alcohol abuse as specifically underscored by his passing out from drinking during an incident with the victims and had a prior felony conviction for malicious mischief. Accordingly, we cannot say that County Court erred in assessing points under the categories of relationship with the victim, drug/alcohol abuse and nonviolent felony history

Cardona, P.J., Spain, Rose and Kane, JJ., concur. Ordered that the order is affirmed, without costs.