People v James Johnston

People v Johnston 2006 NY Slip Op 03232 [28 AD3d 1125] April 28, 2006 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 21, 2006

The People of the State of New York, Respondent, v James Johnston, Appellant.

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Appeal from an order of the Erie County Court (Shirley Troutman, J.), dated January 12, 2005. 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 be and the same hereby 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 (Correction Law § 168 et seq.). Contrary to the contention of defendant, the determination of his risk level is supported by the requisite clear and convincing evidence (see § 168-n [3]). Defendant was convicted upon his plea of guilty of two counts of sexual abuse in the first degree with respect to a niece and a nephew who were less than 11 years old (Penal Law § 130.65 [3]), and he admitted that he had contact with one of the children while he was under probation supervision in violation of a condition of probation (see People v Roberge, 293 AD2d 913 [2002], lv denied 98 NY2d 680 [2002]). Also contrary to the contention of defendant, there was clear and convincing evidence that three or more persons were the victims of his sexual conduct. Defendant admitted as part of his plea of guilty that he had sexual contact with two of the victims (see Correction Law § 168-n [3]; People v Dort, 18 AD3d 23, 25 [2005], lv denied 4 NY3d 885 [2005]; People v Brown, 302 AD2d 919, 920-921 [2003]) and, with respect to defendant's sexual contact with the third victim, County Court was entitled to rely upon defendant's admissions in the presentence report (see People v Mitchell, 300 AD2d 377 [2002], lv denied 99 NY2d 510 [2003]), as well as the sworn statement of that victim that defendant had sexual contact with her (see Correction Law § 168-n [3]). Contrary to the further contention of defendant, the fact that he did not plead guilty to any offense regarding that victim is of no moment inasmuch as he admitted that he had sexual contact with her (see generally People v Heichel, 20 AD3d 934 [2005]; People v Carlton, 307 AD2d 763, 764 [2003]). Thus, "[u]pon our review of the record, we conclude that the court's determination of defendant's risk level was properly based on clear and convincing evidence related to the statutory factors" (Brown, 302 AD2d at 921; see People v Scott, 288 AD2d 763, 764-765 [2001]). Present—Gorski, J.P., Martoche, Smith, Green and Pine, JJ.