Opinion
KA 03-01631.
Decided June 14, 2004.
Appeal from an order of the Monroe County Court (Frank P. Geraci, Jr., J.), rendered July 21, 2003. The order determined that defendant is a level two risk pursuant to the Sex Offender Registration Act.
EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (PATRICK H. FIERRO OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: PIGOTT, JR., P.J., PINE, WISNER, SCUDDER, AND KEHOE, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: We reject the contention of defendant that County Court erred in designating him a level two risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.). There is no merit to the contention that defendant was improperly assessed 10 points for his "[u]nsatisfactory" "[c]onduct while confined" in prison. That assessment was based on the fact that defendant's prison record included two Tier III disciplinary determinations, one for disobeying a direct order and one for bribery and extortion ( see People v. Tucker, 177 Misc.2d 418, 420). In any event, as noted by the court, even if those 10 points were subtracted from defendant's score, defendant would have an assessment of 80 points, which nevertheless would render him a level two risk. The contention that defendant was improperly assessed 15 points based on his history of offenses is raised for the first time on appeal and thus is not properly before us ( see generally People v. Tilley, 305 A.D.2d 1041, lv denied 100 N.Y.2d 588; People v. Brown, 302 A.D.2d 919, 919-920; People v. Davis, 300 A.D.2d 1037, 1037-1038). In any event, that contention is without merit inasmuch as the Risk Assessment Guidelines developed by the Board of Examiners of Sex Offenders expressly provide that a prior youthful offender adjudication is to be treated as a crime for purposes of assessing defendant's likelihood of re-offending and danger to public safety ( see People v. Moore, 1 A.D.3d 421, lv denied ___ N.Y.3d ___ [Mar. 1, 2004]; People v. Gardner, 2002 N.Y. Slip Op 40172 [U]; People v. Vite-Acosta, 184 Misc.2d 206, 209). "Thus, the court's determination of defendant's risk level is based on clear and convincing evidence, and we will not disturb it" ( People v. Warwick, 5 A.D.3d 1050, 1050).