Opinion
2011-11-23
The PEOPLE of the State of New York, Respondent,v.Kenneth FULLER, Appellant.
Paul J. Connolly, Delmar, for appellant.
James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler of counsel), for respondent.
Before: PETERS, J.P., SPAIN, McCARTHY, GARRY and EGAN JR., JJ.
McCARTHY, J.
Appeal from an order of the County Court of Saratoga County (Scarano, J.), entered April 5, 2010, which classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act.
Defendant was convicted in Vermont of aggravated sexual assault of a child stemming from his sexual abuse of his 11–year–old stepson. Following his release from prison, defendant's parole supervision was transferred to New York. Thereafter, County Court classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act ( see Correction Law art. 6–C). Defendant appeals.
In New York, this conviction is equivalent to criminal sexual act in the first degree ( see Penal Law § 130.50).
County Court's assessment of 20 points in the category of unsatisfactory conduct with sexual misconduct while confined is supported by clear and convincing evidence ( see People v. Mingo, 12 N.Y.3d 563, 571, 883 N.Y.S.2d 154, 910 N.E.2d 983 [2009]; People v. Roberts, 38 A.D.3d 1151, 1152, 834 N.Y.S.2d 334 [2007], lv. denied 9 N.Y.3d 801, 840 N.Y.S.2d 567, 872 N.E.2d 253 [2007] ). The case summary states that in violation of correction facility rules, defendant assaulted another inmate with whom he had developed an emotional (but not physical) romantic relationship and also engaged in several incidents of sexual misconduct, including touching an inmate's chest and slapping the buttocks of another, all of which resulted in disciplinary action. Moreover, defendant admitted that, beginning in 2000, he engaged in multiple homosexual relationships while incarcerated, which, as noted in the case summary, are also against correction facility rules. Notwithstanding defendant's attempt to minimize such conduct, the record supports the assessment for unsatisfactory conduct with sexual misconduct while confined and the determination will not be disturbed ( see People v. Salley, 67 A.D.3d 525, 526, 889 N.Y.S.2d 143 [2009], lv. denied 14 N.Y.3d 703, 2010 WL 547596 [2010] ).
ORDERED that the order is affirmed, without costs.
PETERS, J.P., SPAIN, GARRY and EGAN JR., JJ., concur.