Opinion
1000 KA 13-01450.
10-03-2014
The PEOPLE of the State of New York, Respondent, v. Dennis J. SINCERBEAUX, Defendant–Appellant.
James S. Kernan, Public Defender, Lyons (David M. Parks of Counsel), for Defendant–Appellant. Richard M. Healy, District Attorney, Lyons (Jacqueline McCormick of Counsel), for Respondent.
James S. Kernan, Public Defender, Lyons (David M. Parks of Counsel), for Defendant–Appellant.
Richard M. Healy, District Attorney, Lyons (Jacqueline McCormick of Counsel), for Respondent.
PRESENT: CENTRA, J.P., FAHEY, WHALEN, and DeJOSEPH, JJ.
Opinion
MEMORANDUM: On appeal from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq. ), defendant contends that County Court erred in assessing 30 points under risk factor 9 because his prior conviction of endangering the welfare of a child was nonsexual in nature. We reject that contention and conclude that “ ‘[i]t was within the court's discretion to [classify defendant as a level three risk] ... based upon clear and convincing evidence of the facts in support thereof’ ” (People v. Foster, 13 A.D.3d 1117, 1118, 787 N.Y.S.2d 799 ; see People v. Catchings, 56 A.D.3d 1181, 1182, 867 N.Y.S.2d 618, lv. denied 12 N.Y.3d 701, 876 N.Y.S.2d 348, 904 N.E.2d 503 ; People v. Billingsley, 6 A.D.3d 1170, 1170, 775 N.Y.S.2d 652, lv. denied 3 N.Y.3d 605, 785 N.Y.S.2d 21, 818 N.E.2d 663 ).
We reject defendant's further contention that the court erred in crediting the statements of the victim when assessing points under risk factor 1, for defendant's use of forcible compulsion, and risk factor 5, for the age of the victim. The People presented “reliable hearsay evidence, in the form of the victim's statement ...,” that she was 13 years old when the sexual abuse began and that defendant had used forcible compulsion (People v. Wilson, 117 A.D.3d 1557, 1558, 985 N.Y.S.2d 384 ; see People v. Law, 94 A.D.3d 1561, 1563, 943 N.Y.S.2d 814, lv. denied 19 N.Y.3d 809, 2012 WL 3743354 ). Furthermore, the victim's statement was corroborated by the statement of her sister, and we therefore conclude that the court did not err in resolving the credibility issue in favor of the People (see People v. Terrill, 26 A.D.3d 846, 846–847, 808 N.Y.S.2d 869, lv.
denied 7 N.Y.3d 701, 818 N.Y.S.2d 191, 850 N.E.2d 1166 ). Finally, “[t]o the extent that defendant contends that the court improperly assessed 10 points pursuant to risk factor 1, for the use of violence, because forcible compulsion was not an element of the crime of which he was convicted, it is well settled that ‘the court was not limited to considering only the crime of which ... defendant was convicted in making its determination’ ” (Wilson, 117 A.D.3d at 1558, 985 N.Y.S.2d 384 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.