People v. Lang

Full title: THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. STORM U. LANG…

Court: SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department

Date published: Mar 13, 2020

2020 N.Y. Slip Op. 1742 (N.Y. App. Div. 2020)

Opinion

70 KA 18-01411

03-13-2020

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. STORM U. LANG, DEFENDANT-APPELLANT.

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JAMES M. SPECYAL OF COUNSEL), FOR DEFENDANT-APPELLANT. LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (SHIRLEY A. GORMAN OF COUNSEL), FOR RESPONDENT.

WHALEN, P.J., CARNI, BANNISTER, AND DEJOSEPH, JJ.

PRESENT:

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JAMES M. SPECYAL OF COUNSEL), FOR DEFENDANT-APPELLANT.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (SHIRLEY A. GORMAN OF COUNSEL), FOR RESPONDENT.

Appeal from an order of the Genesee County Court (Charles N. Zambito, J.), entered June 1, 2018. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

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.). Contrary to defendant's contention, the 20 points assessed under risk factor 4, for a continuing course of sexual misconduct, are supported by clear and convincing evidence. Here, the evidence, including the victim's statement and defendant's admissions in the presentence report, establishes that defendant engaged in sexual contact with the seven-year-old victim on at least three occasions over a period of more than two weeks (seeSex Offender Registration Act: Risk Assessment Guidelines and Commentary at 10 [2006]; see generally People v Leeson, 148 AD3d 1677, 1678 [4th Dept 2017], lv denied 29 NY3d 912 [2017]).

Defendant's challenge to his underlying conviction, based on an alleged jurisdictional defect in his waiver of indictment, is not properly before us on this appeal from the SORA determination (see People v Jamison, 137 AD3d 1742, 1742 [4th Dept 2016], lv denied 27 NY3d 910 [2016]).

In light of our determination, we do not consider defendant's remaining contention concerning County Court's alternative basis for its risk level assessment.

Entered: March 13, 2020

Mark W. Bennett

Clerk of the Court