People v. Vacanti

26 A.D.3d 732, 807 N.Y.S.2d 894

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 3, 2006
• Status: Published

Opinion

Appeal from an order of the Cattaraugus County Court (Larry M. Himelein, J.), entered October 27, 2004. 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: We conclude that County Court properly determined that defendant is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.). The court properly considered the Arizona certificate of conviction and presentence report as well as the case summary submitted in support of the risk instrument, and the court properly deemed reliable the hearsay information contained in that documentation (see § 168-n [3]; People v Wroten, 286 AD2d 189, 199 [2001], lv denied 97 NY2d 610 [2002]; see also People v Fisher, 22 AD3d 358, 359 [2005]; People v Inghilleri, 21 AD3d 404, 406 [2005]; People v Brown, 7 AD3d 595 [2004]). Contrary to defendant’s contention, the court’s findings with respect to each risk factor and ultimate determination of defendant’s overall risk level are supported by clear and convincing evidence (see People v Hamelinck, 23 AD3d 1060 [2005]; People v Heichel, 20 AD3d 934, 935 [2005]; People v Hitt, 7 AD3d 813 [2004], lv denied 3 NY3d 606 [2004]; see also Correction Law § 168-n [3]). We reject the further contention of defendant that he established his entitlement to a downward departure from the presumptive risk level (see Hamelinck, 23 AD3d 1060 [2005]; People v Guaman, 8 AD3d 545 [2004]; see also People v Foster, 13 AD3d 1117, 1118 [2004], lv denied 4 NY3d 707 [2005]). Present—Pigott, Jr., P.J., Kehoe, Martoche, Smith and Pine, JJ.