Opinion
04-12-2017
PEOPLE of State of New York, respondent, v. Jose FONTEBOA, appellant.
N. Scott Banks, Hempstead, NY (Jeremy L. Goldberg and Tammy Feman of counsel; Justin Erb on the brief), for appellant. Madeline Singas, District Attorney, Mineola, NY (Sarah S. Rabinowitz and Hilda Mortensen of counsel), for respondent.
N. Scott Banks, Hempstead, NY (Jeremy L. Goldberg and Tammy Feman of counsel; Justin Erb on the brief), for appellant.
Madeline Singas, District Attorney, Mineola, NY (Sarah S. Rabinowitz and Hilda Mortensen of counsel), for respondent.
Appeals by the defendant from (1) an order of the Supreme Court, Nassau County (Corrigan, J.), dated March 27, 2015, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6–C, and (2) an order of the same court, also dated March 27, 2015, which, inter alia, also designated him a level three sex offender pursuant to Correction Law article 6–C.
ORDERED that the orders are affirmed, without costs or disbursements.
The defendant pleaded guilty to the crime of sexual abuse in the first degree (Penal Law § 130.65[3] ) with respect to one victim, and the crime of course of sexual conduct against a child in the second degree (Penal Law § 130.80 [1][a] ) with respect to a second victim. An element of each of these crimes is that the victim is less than 11 years old (see e.g. Matter of State of New York v. Michael M., 24 N.Y.3d 649, 652, 2 N.Y.S.3d 830, 26 N.E.3d 769 ; People v. Lopez, 121 A.D.3d 412, 993 N.Y.S.2d 32 ). At the hearing held pursuant to Correction Law article 6–C, the defendant argued that, in order for the People to meet the clear and convincing standard of proof with respect to risk factor 5, regarding the age of the victims, the People were required to produce copies of the victims' birth certificates. The Supreme Court properly rejected that argument. The victims' ages were facts elicited at the time of entry of the plea of guilty (see Correction Law § 168–n[3] ). As such, those facts were deemed established by clear and convincing evidence, and could not be relitigated (see id. ; People v. Andrews, 136 A.D.3d 880, 24 N.Y.S.3d 920 ; see also People v. Martinez, 125 A.D.3d 735, 736, 3 N.Y.S.3d 408 ). The defendant's remaining contentions with respect to risk factor 5 are unpreserved for appellate review (see People v. Palacios, 137 A.D.3d 761, 762, 26 N.Y.S.3d 351 ) and, in any event, without merit.
Certain statements made by the defendant and recounted in the presentence report indicate that he minimized his culpability with respect to one victim and "adamantly denie[d]" his culpability with respect to the other victim. Under these circumstances, the Supreme Court properly assessed 10 points under risk factor 12 for failure to take responsibility (see People v. Benitez, 140 A.D.3d 1140, 1140–1141, 35 N.Y.S.3d 377 ; People v. Dallas, 122 A.D.3d 698, 699, 995 N.Y.S.2d 618 ; People v. Perry, 85 A.D.3d 890, 925 N.Y.S.2d 345 ).
In light of our determination, the defendant's argument with respect to risk factor 1 has been rendered academic, since the elimination of these points would not affect the defendant's risk level (see People v. Corn, 128 A.D.3d 436, 437, 8 N.Y.S.3d 322 ; People v. Boykin, 102 A.D.3d 937, 937–938, 958 N.Y.S.2d 496 ; People v. Teagle, 64 A.D.3d 549, 550, 884 N.Y.S.2d 80 ; cf. People v. Noriega, 26 A.D.3d 767, 808 N.Y.S.2d 529 ).
MASTRO, J.P., CHAMBERS, MILLER and MALTESE, JJ., concur.