People v. Jack

15 A.D.3d 270, 789 N.Y.S.2d 492, 2005 N.Y. App. Div. LEXIS 1697

Opinion

Order, Supreme Court, New York County (Ronald A. Zweibel, J.), entered on or about October 16, 2002, which adjudicated defendant a level three sex offender following a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

In adjudicating defendant a level three sex offender, the court properly assessed 30 points under the “Use of Violence” category of the Risk Assessment Guidelines established by the Board of Examiners of Sex Offenders. In making such a determination, “[flacts previously proven at trial or elicited at the time of entry of a plea of guilty shall be deemed established by clear and convincing evidence and shall not be relitigated” (Correction Law § 168-n [3]). Defendant’s plea allocution, as well as the case summary prepared by the Board of Examiners, clearly established that, under principles of accomplice liability (see Penal Law § 20.00), defendant used a dangerous instrument in his commission of the crime, in that he forced the victim to submit to a sex crime by taking advantage of his unapprehended accomplice’s threatened use of a box cutter. We have considered and rejected defendant’s remaining arguments. Concur — Tom, J.P, Andrias, Ellerin, Gonzalez and Catterson, JJ.