People v Ferguson

People v Ferguson 2007 NY Slip Op 03498 [39 AD3d 1258] April 20, 2007 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 6, 2007

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

—[*1] Edward J. Nowak, Public Defender, Rochester (James Eckert of counsel), for defendant-appellant.

Michael C. Green, District Attorney, Rochester (Nancy A. Gilligan of counsel), for respondent.

Appeal from an order of the Monroe County Court (John J. Connell, J.), entered September 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 defendant's contention, County Court did not err in assessing 10 points for sexual misconduct while confined. The case summary states that, on February 4, 2005, defendant was cited for tier II infractions for, inter alia, "Lewd Exposure." 7 NYCRR 270.2 (B) (2) (iii) provides that an inmate shall not intentionally expose "the private parts of his or her body" in the presence of an employee except for an authorized purpose. The court rejected the explanation of defendant that he was using the bathroom facilities while a female employee was within sight, and there is no basis in the record before us to disturb that determination. We note that the court reduced the score on the risk assessment instrument from 145 to 110, and we conclude that the court's determination that defendant is a level three risk is supported by clear and convincing evidence (see People v Vacanti, 26 AD3d 732, 733 [2006], lv denied 6 NY3d 714 [2006]). Present—Scudder, P.J., Centra, Lunn, Peradotto and Pine, JJ.