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The People of the State of New York, Respondent v. Victor Johnson

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


August 9, 2011

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
VICTOR JOHNSON, APPELLANT.

People v Johnson (Victor)

Decided on August 9, 2011

Appellate Term, Second Department

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

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: TANENBAUM, J.P., MOLIA and IANNACCI, JJ

Appeal from an order of the District Court of Nassau County, First District (Francis Ricigiliano, J.), entered November 14, 2003, deemed from a supplemental order of the same court entered July 20, 2010. The order, following a hearing, designated defendant a level three sex offender pursuant to Correction Law article 6-C.

ORDERED that the order is affirmed, without costs.

Defendant pleaded guilty to sexual abuse in the second degree (Penal Law § 130.60 [2]) and endangering the welfare of a child (Penal Law § 260.10). At a hearing held pursuant to the Sex Offender Registration Act (SORA) (see Correction Law § 168-n), the People submitted clear and convincing evidence of defendant's out-of-state felony conviction of a sex crime under Maryland Annotated Code, article 27, § 464B. The People also submitted an assessment instrument prepared by the Board of Examiners of Sex Offenders recommending that defendant be designated a level three sex offender based upon the automatic override factor of an out-of-state felony conviction. The District Court adopted the Board's recommendation and designated defendant a level three sex offender.

Defendant's contention that the District Court erred in relying on the automatic override for the prior Maryland felony sex conviction to find that he was a level three sex offender is unpreserved for appellate review (see CPLR 4017, 5501 [a] [3]; Correction Law § 168-n [3] [SORA appeals are governed by applicable CPLR provisions]; see also People v Patterson, 51 AD3d 750 [2008]). In any event, the contention is without merit. A defendant may be classified as a predicate sex offender based upon a conviction in a foreign jurisdiction where the out-of-state offense includes all the essential elements of an offense that is subject to registration in New York (see Correction Law § 168-a [2] [d] [i]; [3] [b]; People v Mann, 52 AD3d 884 [2008]; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, Guidelines at Factor 9 [2006]).

The out-of-state felony conviction under Maryland Annotated Code, article 27, § 464B was a sex offense which arose from defendant rubbing his penis against the buttocks of a six-year-old male victim. This act would constitute the crime of sexual abuse in the second degree if committed in New York (see Penal Law § 130.60 [2]), and is a registerable offense under SORA. Thus, the automatic override to a level three sex offender designation, irrespective of the assessment of points scored on the risk assessment instrument, was warranted (see People v Guitard, 57 AD3d 751, 752 [2008]).

Defendant's remaining contention that the Board of Examiners failed to assess points in the risk assessment instrument to designate defendant as a level three sex offender is improperly raised for the first time on appeal (see CPLR 4017; 5501 [a] [3]; Correction Law § 168-n [3]; see also Patterson, 51 AD3d 750), and we decline to review this contention (see People v Pierce, 27 AD3d 1182 [2006]).

Accordingly, the order designating defendant a level three sex offender is affirmed.

Tanenbaum, J.P., Molia and Iannacci, JJ., concur.

Decision Date: August 09, 2011

20110809

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