A. Feldman, Uniondale, NY, for appellant.
Madeline Singas, District Attorney, Mineola, NY (Laurie K.
Gibbons and Sara S. Rabinowitz of counsel), for respondent.
RANDALL T. ENG, P.J., L. PRISCILLA HALL, JEFFREY A. COHEN,
FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
by the defendant from an order of the Supreme Court, Nassau
County (Murphy, J.), dated July 1, 2015, which, after a
hearing, designated him a level three sex offender pursuant
to Correction Law article 6-C.
that the order is affirmed, without costs or disbursements.
to the defendant's contention, the Supreme Court properly
determined that he was required to register as a sex offender
in New York pursuant to New York's Sex Offender
Registration Act (hereinafter SORA) (see Correction
Law § 168 et seq.), as a result of his
conviction in Colorado, upon his plea of guilty, of unlawful
sexual contact (see Colo Rev Stat [hereinafter CRS]
§ 18-3-404[a]). With respect to out-of-state
convictions, SORA requires registration, inter alia, for a
conviction of "an offense in any other jurisdiction
which includes all of the essential elements of any... crime
[designated as a sex offense' by SORA]" (Correction
Law § 168-a[d]; see Matter of North v Board of
Examiners of Sex Offenders of State of N.Y., 8 N.Y.3d
745, 753). The Supreme Court properly determined that the
Colorado offense of unlawful sexual contact (see CRS
§ 18-3-404[a]) includes all of the essential elements
of New York's offense of sexual abuse in the third degree
(see Penal Law § 130.55), which constitutes a
registrable sex offense when the victim was less than 18
years old (see Correction Law § 168-a[b]).
The defendant's contention, raised for the first time on
appeal, that unlawful sexual contact (see CRS §
18-3-404[a]) does not include all of the essential
elements of sexual abuse in the third degree (Penal Law
§ 130.55), because the New York offense contains an
affirmative defense, is not preserved for appellate review
(see People v Gonzalez, 142 A.D.3d 541, 542), and we
decline to reach it in the interest of justice.
establishing a defendant's risk level pursuant to SORA,
the People bear the burden of establishing, by clear and
convincing evidence, the facts supporting the determinations
sought" (People v Eaton, 105 A.D.3d 722, 723;
see Correction Law § 168-n). "In
assessing points, evidence may be derived from the
defendant's admissions, the victim's statements,
evaluative reports completed by the supervising probation
officer, parole officer, or corrections counselor, case
summaries prepared by the Board of Examiners of Sex Offenders
(hereinafter the Board), or any other reliable source,
including reliable hearsay" (People v Crandall,
90 A.D.3d 628, 629).
to the defendant's contention, the People established by
clear and convincing evidence that the Board properly
assessed him 25 points under risk factor 2 for engaging in
sexual intercourse with the victim and 20 points under risk
factor 4 for a continuing course of conduct, based upon the
victim's statements to Colorado authorities that the
defendant engaged in sexual intercourse with her on three
separate occasions (see People v Davis, 130 A.D.3d
598, 599-600; Sex Offender Registration Act: Risk Assessment
Guidelines and Commentary at 9-10  [hereinafter the
Guidelines]). Further, the People established by clear and
convincing evidence that the Board correctly assessed the
defendant 15 points under risk factor 12 for his failure to
accept responsibility, as evidenced by his abscondment from
Colorado to New York without advising the Colorado Department
of Probation and his unsuccessful discharge from sex offender
treatment in Colorado (see People v Grigg, 112
A.D.3d 802, 803; People v DeCastro, 101 A.D.3d 693).
The information contained in the case summary and the police
reports offered by the People, which included detailed victim
statements, was reliable within the meaning of SORA (see
People v Davis, 130 A.D.3d at 599-600; People v
Crandall, 90 A.D.3d at 629).
defendant's contentions that he is entitled to a downward
departure because the victim's lack of consent was due
only to inability to consent by virtue of age, and because he
did not impregnate the victim, are not preserved for
appellate review, as he failed to raise those claims when he
argued for a downward departure at the SORA hearing (see
People v Rosales, 133 A.D.3d 733). To the extent that
the defendant's contention that his limited criminal
history is a basis for a downward departure is preserved for
appellate review, his contention is without merit, as he
failed to identify a mitigating factor that is otherwise not
adequately taken into account by the Guidelines (see