People v. Zuniga-Rocha

Appellate Division of the Supreme Court of New York

People v. Zuniga-Rocha

149 A.D.3d 1541, 52 N.Y.S.3d 786

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

DecidedApril 28, 2017

StatusPublished

This text of 149 A.D.3d 1541 (People v. Zuniga-Rocha) 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. Zuniga-Rocha, 149 A.D.3d 1541, 52 N.Y.S.3d 786 (N.Y. Ct. App. 2017).

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Opinion

Appeal from an order of the Genesee County Court (Robert C. Noonan, J.), dated August 21, 2015. The order determined that defendant is a level two risk pursuant to the Sex Offender Registration Act.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: On appeal from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act ([SORA] Correction Law § 168 et seq.), defendant contends that the People failed to establish his risk level by clear and convincing evidence. We reject that contention. Defendant was convicted upon his Alford plea of sexual abuse in the first [1542]*1542degree (Penal Law § 130.65 [1]). During the plea colloquy, County Court placed on the record the conditions upon which the plea was entered, including the need for defendant to be classified as a sex offender, and the prosecutor placed on the record the proof that the People intended to offer at trial. We reject defendant’s contention that, inasmuch as he did not admit guilt during the plea colloquy, the court erred in relying upon the evidence set forth by the prosecutor. “Although defendant did not admit guilt as part of the Alford plea, the evidence was elicited at the time of the entry of the plea of guilty, [and thus] it was deemed established for the purposes of SORA classification” (People v Jones, 15 AD3d 929, 930 [2005]). We note in any event that the court also relied upon the victim’s grand jury testimony and her supporting deposition. It is well settled that, in making a SORA determination, “a court may consider reliable hearsay, including grand jury testimony” (People v Jewell, 119 AD3d 1446, 1447 [2014], lv denied 24 NY3d 905 [2014]), and a victim’s sworn deposition (see People v Witherspoon, 140 AD3d 1674, 1675 [2016], lv denied 28 NY3d 905 [2016]).

Present — Whalen, P.J., Smith, Centra, Troutman and Scudder, JJ.

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Appeal from an order of the Genesee County Court (Robert C. Noonan, J.), dated August 21, 2015. The order determined that defendant is a level two risk pursuant to the Sex Offender Registration Act.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: On appeal from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act ([SORA] Correction Law § 168 et seq.), defendant contends that the People failed to establish his risk level by clear and convincing evidence. We reject that contention. Defendant was convicted upon his Alford plea of sexual abuse in the first [1542]*1542degree (Penal Law § 130.65 [1]). During the plea colloquy, County Court placed on the record the conditions upon which the plea was entered, including the need for defendant to be classified as a sex offender, and the prosecutor placed on the record the proof that the People intended to offer at trial. We reject defendant’s contention that, inasmuch as he did not admit guilt during the plea colloquy, the court erred in relying upon the evidence set forth by the prosecutor. “Although defendant did not admit guilt as part of the Alford plea, the evidence was elicited at the time of the entry of the plea of guilty, [and thus] it was deemed established for the purposes of SORA classification” (People v Jones, 15 AD3d 929, 930 [2005]). We note in any event that the court also relied upon the victim’s grand jury testimony and her supporting deposition. It is well settled that, in making a SORA determination, “a court may consider reliable hearsay, including grand jury testimony” (People v Jewell, 119 AD3d 1446, 1447 [2014], lv denied 24 NY3d 905 [2014]), and a victim’s sworn deposition (see People v Witherspoon, 140 AD3d 1674, 1675 [2016], lv denied 28 NY3d 905 [2016]).

Present — Whalen, P.J., Smith, Centra, Troutman and Scudder, JJ.

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Bluebook (online)

149 A.D.3d 1541, 52 N.Y.S.3d 786, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-zuniga-rocha-nyappdiv-2017.

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