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People v. McCray

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


May 26, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
JOHN MCCRAY, DEFENDANT-APPELLANT.

Order, Supreme Court, New York County (Charles J. Tejada, J.), entered on or about March 4, 2008, which adjudicated defendant a level three sex offender pursuant to the Sex Offender Registration Act (Correction Law article 6-C), unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Catterson, J.P., McGuire, Moskowitz, DeGrasse, Freedman, JJ.

6459/03

Defendant was properly assessed 20 points under the risk factor for continuing course of sexual misconduct, since, in his plea allocution, defendant admitted engaging in such conduct "on a number of occasions," during a six-month period, and "[f]acts . . . elicited at the time of entry of a plea of guilty shall be deemed established by clear and convincing evidence and shall not be relitigated" (Correction Law § 168-n[3]).

Defendant's claim relating to another risk factor is improperly raised for the first time on appeal (see CPLR 4017, 5501[a][3]; Correction Law § 168-n [3]; People v Hernandez, 44 AD3d 565 [2007], lv denied, 10 NY3d 708 [2008]). In any event, the additional points at issue are not necessary for a finding that defendant is a level three sex offender.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090526

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