People v Lewis

People v Lewis 2007 NY Slip Op 08620 [45 AD3d 1381] November 9, 2007 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 16, 2008

The People of the State of New York, Respondent, v Ronald Lewis, 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 (Kenneth R. Fisher, J.), entered November 15, 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 the defendant, Supreme Court's determination to classify him in accordance with his presumptive classification as a level three risk is supported by the requisite clear and convincing evidence (see § 168-n [3]), including evidence of his sexual misconduct with the victim, his use of violence, and his lengthy criminal history, including his conviction of a felony five years before the instant conviction of attempted sexual abuse in the first degree (Penal Law §§ 110.00, 130.65). Defendant also previously had been placed in juvenile detention for sexual misconduct. Contrary to defendant's further contention, the court properly considered the case summary and the presentence report, which constitute reliable hearsay, in determining defendant's risk level (see People v Woods, 41 AD3d 1299 [2007], lv denied 9 NY3d 809 [2007]; People v Vacanti, 26 AD3d 732 [2006], lv denied 6 NY3d 714 [2006]). We reject defendant's further contention that the People failed to establish a basis for the assessment of 20 points under risk factor 7, i.e., "[r]elationship with victim." The People presented evidence establishing that the victim met defendant for the first time only a few hours before the incident, did not know his legal name, and knew no other personal information about him. "Thus, the court properly concluded that 'defendant was a stranger to the victim' " (People v Gaines, 39 AD3d 1212, 1213 [2007], lv denied 9 NY3d 803 [2007]). Present—Scudder, P.J., Gorski, Centra, Fahey and Green, JJ.