Opinion
2020–07748
05-12-2021
PEOPLE of State of New York, respondent, v. Oswaldo JACINTO–ORDONEZ, appellant.
Clare J. Degnan, White Plains, N.Y. (Debra A. Cassidy of counsel), for appellant. Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (Raffaelina Gianfrancesco and Steven A. Bender of counsel), for respondent.
Clare J. Degnan, White Plains, N.Y. (Debra A. Cassidy of counsel), for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (Raffaelina Gianfrancesco and Steven A. Bender of counsel), for respondent.
MARK C. DILLON, J.P., LEONARD B. AUSTIN, BETSY BARROS, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Westchester County (Susan Cacace, J.), dated March 4, 2020, which, after a hearing designated him a level two sex offender pursuant to Correction Law article 6–C.
ORDERED that the order is affirmed, without costs or disbursements.
In this proceeding pursuant to the Sex Offender Registration Act (Correction Law art 6–C; hereinafter SORA), the Supreme Court, after a hearing, assessed the defendant 95 points and designated him a level two sex offender. On appeal, the defendant challenges the assessment of 25 points under risk factor 2 (sexual contact with victim) (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, Sex Offender Guidelines at I [Factor 2] [2006]), arguing that his purported admissions during sex offender treatment did not constitute "reliable hearsay" ( Correction Law § 168–n[3] ; see People v. Mingo, 12 N.Y.3d 563, 574, 883 N.Y.S.2d 154, 910 N.E.2d 983 ).
The defendant waived his objection to the admissibility of the Sex Offender Counseling and Treatment Program records at the SORA hearing by expressly declining to object to their admission and by then relying upon other statements within the same records (see Smith v. Sommer, 189 A.D.3d 906, 908, 137 N.Y.S.3d 99 ; see also People v. Honghirun, 133 A.D.3d 882, 883, 20 N.Y.S.3d 409, affd 29 N.Y.3d 284, 56 N.Y.S.3d 275, 78 N.E.3d 804 ; People v. Gary, 115 A.D.3d 760, 761, 981 N.Y.S.2d 602, affd 26 N.Y.3d 1017, 20 N.Y.S.3d 327, 41 N.E.3d 1142 ). Further, the Supreme Court properly credited those statements and determined that the People presented clear and convincing evidence of sexual intercourse so as to warrant the assessment of 25 points under risk factor 2 (see People v. Parris, 153 A.D.3d 68, 82–83, 60 N.Y.S.3d 169 ).
Accordingly, the Supreme Court properly designated the defendant a level two sex offender.
DILLON, J.P., AUSTIN, BARROS, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.