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The People of the State of New York, Respondent v. Michael Rotterman

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


June 8, 2012

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
MICHAEL ROTTERMAN, DEFENDANT-APPELLANT.

Appeal from an order of the Erie County Court (Kenneth F. Case, J.), entered June 3, 2011.

People v Rotterman

Appellate Division, Fourth Department

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.

Decided on June 8, 2012

PRESENT: SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, AND SCONIERS, JJ.

The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Defendant appeals from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act ([SORA] Correction Law § 168 et seq.). Contrary to defendant's contention, County Court complied with the statutory mandate to set forth "the findings of fact and conclusions of law on which the determination [is] based" (§ 168-n [3]; see People v Carter, 35 AD3d 1023, 1023-1024, lv denied 8 NY3d 810). We reject defendant's further contention that the People failed to present clear and convincing evidence to support the assessment of 30 points against him for being armed with a dangerous instrument during the commission of one of the underlying crimes. That assessment is supported by the reliable hearsay contained in the case summary and the presentence report (see People v Thompson, 66 AD3d 1455, 1456, lv denied 13 NY3d 714; see generally People v Mingo, 12 NY3d 563, 573). Defendant failed to preserve for our review his contention that a downward departure from his presumptive risk level was warranted (see People v Quinones, 91 AD3d 1302, 1303). Finally, we reject defendant's contention that he was denied effective assistance of counsel at the SORA hearing (see People v Bowles, 89 AD3d 171, 181, lv denied 18 NY3d 807).

Entered: June 8, 2012

Frances E. Cafarell Clerk of the Court

20120608

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