Opinion
521727
04-25-2019
The PEOPLE of the State of New York, Respondent, v. David HUYLER, Appellant.
Norbert A. Higgins, Binghamton, for appellant. Weeden A. Wetmore, District Attorney, Elmira (John R. Thweatt of counsel), for respondent.
Norbert A. Higgins, Binghamton, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (John R. Thweatt of counsel), for respondent.
Before: Garry, P.J., Lynch, Clark, Mulvey and Rumsey, JJ.
MEMORANDUM AND ORDER
Clark, J.
In 1990, defendant pleaded guilty to rape in the first degree and was sentenced to 12 ½ to 25 years in prison. In 2015, in anticipation of defendant's release from prison, the Board of Examiners of Sex Offenders completed a risk assessment instrument in accordance with the Sex Offender Registration Act (see Correction Law art 6–C) that presumptively classified defendant as a risk level three sex offender (150 points). Defendant appeared before County Court with counsel, who indicated that defendant consented to being adjudicated a risk level three sex offender and a sexually violent offender. As a result, County Court classified defendant as a risk level three sex offender and designated him a sexually violent offender. Defendant now appeals.We affirm. Defendant contends that his consent to being classified as a risk level three sex offender and designated a sexually violent offender was not knowing, intelligent and voluntary. Even assuming that this claim may be raised for the first time on appeal, we are satisfied that the consent was valid (see People v. Smith , 92 A.D.3d 1045, 1045, 938 N.Y.S.2d 374 [2012], lv denied 19 N.Y.3d 805, 2012 WL 2036749 [2012] ; People v. Costas , 46 A.D.3d 475, 476, 848 N.Y.S.2d 643 [2007], lv denied 10 N.Y.3d 716, 862 N.Y.S.2d 337, 892 N.E.2d 403 [2008] ). Defendant was represented by counsel throughout the proceedings and, in defendant's presence, counsel advised County Court that he had discussed with defendant the numerical scoring in the risk assessment instrument and the override based upon his prior sex crime and that defendant was willing to stipulate to a risk level three sex offender classification and a sexually violent offender designation. County Court then confirmed with defendant that he understood that he had a right to a hearing regarding the risk level classification and that he was consenting to the risk level classification and designation as outlined by counsel. In our view, defendant's consent to the classification and designation was knowingly, intelligently and voluntarily given (see People v. Smith , 92 A.D.3d at 1045–1046, 938 N.Y.S.2d 374 ; People v. Costas , 46 A.D.3d at 476, 848 N.Y.S.2d 643 ; People v. Gliatta , 27 A.D.3d 441, 441, 810 N.Y.S.2d 342 [2006] ).
Notwithstanding the amount of points assessed in the Board's risk assessment instrument, defendant also has a prior felony conviction for a sex crime that would constitute an applicable override resulting in a presumptive risk level three assessment (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 19 [2006] ).
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Garry, P.J., Lynch, Mulvey and Rumsey, JJ., concur.
ORDERED that the order is affirmed, without costs.