Opinion
2012-02-10
The PEOPLE of the State of New York, Respondent, v. David L. GARDINER, Defendant–Appellant.
Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of Counsel), for Defendant–Appellant. David L. Gardiner, Defendant–Appellant Pro se.
Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of Counsel), for Defendant–Appellant. David L. Gardiner, Defendant–Appellant Pro se. William J. Fitzpatrick, District Attorney, Syracuse (Stefanie Gruber, Victoria M. White of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.
MEMORANDUM:
Defendant appeals from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act ( [SORA] Correction Law § 168 et seq.). We reject defendant's contention that County Court erred in assessing 30 points against him under risk factor 3, for having three or more victims. Defendant was charged with sexually abusing three children, including his 11–year–old daughter. Although defendant pleaded guilty only to those counts of the indictment relating to the abuse of his daughter, it is well settled that, in determining the number of victims for SORA purposes, the hearing court is not limited to the crime of which defendant was convicted ( see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 5 [2006]; § 168–n[3]; People v. Callan, 62 A.D.3d 1218, 1218–1219, 881 N.Y.S.2d 510). Here, in making its determination, the court was entitled to consider “reliable hearsay evidence,” including the case summary, which supported the court's determination as to the number of victims (§ 168–n[3]; see People v. Mingo, 12 N.Y.3d 563, 572–573, 883 N.Y.S.2d 154, 910 N.E.2d 983; People v. Baker, 57 A.D.3d 1472, 871 N.Y.S.2d 537, lv. denied 12 N.Y.3d 706, 879 N.Y.S.2d 53, 906 N.E.2d 1087).
Defendant's contention that the court should have granted a downward departure to a level two risk is not preserved for our review because defendant did not request a downward departure ( see People v. Ratcliff, 53 A.D.3d 1110, 862 N.Y.S.2d 686, lv. denied 11 N.Y.3d 708, 868 N.Y.S.2d 600, 897 N.E.2d 1084). Finally, contrary to the contention raised by defendant in his pro se supplemental brief, the court properly assessed 25 points against him under risk factor 2, for having deviate sexual intercourse with at least one of the victims. Although defendant was not convicted of having deviate sexual intercourse with his daughter, the case summary states that he had deviate sexual intercourse with the other two victims, and the indictment charges him with having deviate sexual intercourse with one of them. Moreover, the indictment was presumably based upon the victims' grand jury testimony, which also constitutes reliable hearsay ( see People v. Howard, 52 A.D.3d 273, 860 N.Y.S.2d 503, lv. denied 11 N.Y.3d 706, 866 N.Y.S.2d 610, 896 N.E.2d 96).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.