People v Irving

People v Irving 2007 NY Slip Op 08634 [45 AD3d 1389] 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 Barry T. Irving, Appellant.

—[*1] Frank J. Nebush, Jr., Public Defender, Utica (Esther Cohen Lee of counsel), for defendant-appellant.

Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), for respondent.

Appeal from an order of the Oneida County Court (Michael L. Dwyer, J.), entered June 2, 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: 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.). We reject the contention of defendant that County Court erred in assessing 30 points against him under the risk factor for the number and nature of prior crimes based on his previous youthful offender adjudication. In the context of the criminal history section of the risk assessment instrument, "the term 'crime' includes criminal convictions, youthful offender adjudications and juvenile delinquency findings. The Board [of Examiners of Sex Offenders (Board)] concluded that these determinations are reliable indicators of wrongdoing and therefore should be considered in assessing an offender's likelihood of reoffense and danger to public safety" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 6 [Nov. 1997]). "Although an adjudication as a youthful offender is not a conviction, it constitutes a reliable determination that an offender committed the underlying criminal conduct" (id. at 6 n 6; see People v Compton, 38 AD2d 788 [1972]; see also People v Peterson, 8 AD3d 1124 [2004], lv denied 3 NY3d 607 [2004]).

We reject defendant's further contention that the court improperly relied on the case summary because it was not signed by a member of the Board. Defendant cites no authority for that contention, and we have previously determined that a case summary contains reliable hearsay upon which the court is entitled to rely (see e.g. People v Castleberry, 43 AD3d 1369 [2007]; People v Ramos, 41 AD3d 1250 [2007], lv denied 9 NY3d 809 [2007]). Present—Hurlbutt, J.P., Gorski, Martoche, Lunn and Peradotto, JJ.