People v Sincerbeaux

People v Sincerbeaux 2014 NY Slip Op 06735 Decided on October 3, 2014 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 October 3, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: CENTRA, J.P., FAHEY, WHALEN, AND DEJOSEPH, JJ.
1000 KA 13-01450

[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

v

DENNIS J. SINCERBEAUX, DEFENDANT-APPELLANT.

Appeal from an order of the Wayne County Court (Dennis M. Kehoe, J.), dated May 6, 2013. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.

JAMES S. KERNAN, PUBLIC DEFENDER, LYONS (DAVID M. PARKS OF COUNSEL), FOR DEFENDANT-APPELLANT.

RICHARD M. HEALY, DISTRICT ATTORNEY, LYONS (JACQUELINE MCCORMICK OF COUNSEL), FOR RESPONDENT.

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

Memorandum: On appeal from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.), defendant contends that County Court erred in assessing 30 points under risk factor 9 because his prior conviction of endangering the welfare of a child was nonsexual in nature. We reject that contention and conclude that " [i]t was within the court's discretion to [classify defendant as a level three risk] . . . based upon clear and convincing evidence of the facts in support thereof' " (People v Foster, 13 AD3d 1117, 1118; see People v Catchings, 56 AD3d 1181, 1182, lv denied 12 NY3d 701; People v Billingsley, 6 AD3d 1170, 1170, lv denied 3 NY3d 605).

We reject defendant's further contention that the court erred in crediting the statements of the victim when assessing points under risk factor 1, for defendant's use of forcible compulsion, and risk factor 5, for the age of the victim. The People presented "reliable hearsay evidence, in the form of the victim's statement . . . ," that she was 13 years old when the sexual abuse began and that defendant had used forcible compulsion (People v Wilson, 117 AD3d 1557, 1558; see People v Law, 94 AD3d 1561, 1563, lv denied 19 NY3d 809). Furthermore, the victim's statement was corroborated by the statement of her sister, and we therefore conclude that the court did not err in resolving the credibility issue in favor of the People (see People v Terrill, 26 AD3d 846, 846-847, lv denied 7 NY3d 701). Finally, "[t]o the extent that defendant contends that the court improperly assessed 10 points pursuant to risk factor 1, for the use of violence, because forcible compulsion was not an element of the crime of which he was convicted, it is well settled that the court was not limited to considering only the crime of which . . . defendant was convicted in making its determination' " (Wilson, 117 AD3d at 1558).

Entered: October 3, 2014

Frances E. Cafarell

Clerk of the Court