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The People of the State of v. Wayne L. Smith

State of New York Supreme Court, Appellate Division Third Judicial Department


February 9, 2012

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
WAYNE L. SMITH, APPELLANT.

Appeal from an order of the County Court of Broome County (Smith, J.), entered November 15, 2010, which classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act.

The opinion of the court was delivered by: Stein, J.

MEMORANDUM AND ORDER

Calendar Date: January 9, 2012

Before: Rose, J.P., Malone Jr., Stein, McCarthy and Egan Jr., JJ.

Defendant pleaded guilty to rape in the first degree and criminal sexual act in the first degree and was sentenced to five years in prison followed by five years of postrelease supervision. The Board of Examiners of Sex Offenders recommended that defendant be classified as a risk level III sex offender based upon an override factor that he had inflicted serious physical injury upon his victim. Defendant declined a hearing and County Court adjudicated defendant to be a risk level III sex offender as recommended by the Board. Defendant now appeals.

Defendant contends that his waiver of a hearing and consent to being adjudicated a risk level III sex offender was not knowing, voluntary and intelligent. Assuming that this argument is properly raised for the first time on appeal, we find that defendant's waiver and consent were adequate (see People v Costas, 46 AD3d 475, 476 [2007], lv denied 10 NY3d 716 [2008]; People v Gliatta, 27 AD3d 441, 441 [2006]; see also People v Kyle, 64 AD3d 1177, 1178 [2009], lv denied 13 NY3d 709 [2009]). The record reveals that County Court advised defendant of the seriousness of his decision, that he was entitled to a hearing and that he would be granted an adjournment to prepare for the hearing. Defendant stated that he understood County Court's admonitions, that he had sufficient time to discuss the matter with his attorney and that he did not wish to contest the risk level III recommendation of the Board (see People v Kinlock, 66 AD3d 980, 981 [2009]).

Rose, J.P., Malone Jr., McCarthy and Egan Jr., JJ., concur.

ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20120209

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