People v Marrocco

People v Marrocco 2007 NY Slip Op 05046 [41 AD3d 1297] June 8, 2007 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 15, 2007

The People of the State of New York, Respondent, v James Marrocco, 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 Supreme Court, Monroe County (Frank P. Geraci, Jr., A.J.), entered January 24, 2006. 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: On appeal from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act ([SORA] Correction Law § 168 et seq.), defendant contends that Supreme Court erred in relying on the case summary and the presentence report. Contrary to defendant's contention, the court properly relied on those documents inasmuch as they contain reliable hearsay (see People v Vacanti, 26 AD3d 732 [2006], lv denied 6 NY3d 714 [2006]; People v Vaughn, 26 AD3d 776 [2006]). Defendant further contends that the court erred in considering his probation report because it was not provided to defense counsel prior to the SORA hearing. Defendant failed to preserve that contention for our review (see generally People v Staples, 37 AD3d 1099 [2007]) and, in any event, any error in that respect would not require reversal. The record establishes that defense counsel requested an adjournment of the hearing to obtain the report only in the event that the court intended to rely on it in assessing points for the failure of defendant to accept responsibility for his actions, and the court denied the People's request for an assessment of points under that factor. Thus, defendant was not prejudiced by the failure to provide defense counsel with the report. Present—Hurlbutt, J.P., Martoche, Smith, Fahey and Green, JJ.