Opinion
2013-02-6
PEOPLE of State of New York, respondent, v. James SMITH, appellant.
Barry Jay Skwiersky, Mount Vernon, N.Y., for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Steven A. Bender and Richard Longworth Hecht of counsel), for respondent.
Barry Jay Skwiersky, Mount Vernon, N.Y., for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Steven A. Bender and Richard Longworth Hecht of counsel), for respondent.
Appeal by the defendant from an order of the County Court, Westchester County (Cacace, J.), dated April 7, 2011, which, after a hearing, designated him a level three sexually violent offender pursuant to Correction Law article 6–C.
ORDERED that the order is affirmed, without costs or disbursements.
Contrary to the defendant's contention, it was within the County Court's discretion to consider, as reliable hearsay evidence, documents that did not strictly comply with CPLR 4540 ( see People v. Wheeler, 46 A.D.3d 1082, 848 N.Y.S.2d 391;see also People v. Mingo, 12 N.Y.3d 563, 883 N.Y.S.2d 154, 910 N.E.2d 983).
The County Court's designation of the defendant as a level three sexually violent offender was supported by clear and convincing evidence ( see Correction Law § 168–n[3]; People v. Pettigrew, 14 N.Y.3d 406, 408, 901 N.Y.S.2d 569, 927 N.E.2d 1053;People v. Samayoa, 96 A.D.3d 1031, 1032, 946 N.Y.S.2d 898). Contrary to the defendant's contention, the County Court did not err in assessing him 10 points under risk factor 1 ( see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary [hereinafter SORA Guidelines] at 7–8 [2006] ), 20 points under risk factor 7 ( see SORA Guidelines at 15–16), and 10 points under risk factor 13. Additionally, the defendant was properly designated a sexually violent offender based upon his convictions of sex offenses in New Jersey ( see Correction Law § 168–a[3]; Penal Law § 130.50).
The defendant's contention that he was deprived of his constitutional right to due process of law by a delay in the commencement of the SORA proceeding is not properly before this Court since he failed to raise this argument before the County Court ( see People v. Gonzalez, 69 A.D.3d 819, 892 N.Y.S.2d 774;People v. Ruben, 65 A.D.3d 1026, 1027, 884 N.Y.S.2d 886).