People v Concepcion

People v Concepcion 2007 NY Slip Op 02531 [38 AD3d 739] March 20, 2007 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 9, 2007

The People of the State of New York, Respondent,
v
Justo Concepcion, Appellant.

—[*1] Steven Banks, New York, N.Y. (Steven J. Miraglia of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Anthea H. Bruffee of counsel), for respondent.

Appeal by the defendant from an order of the Supreme Court, Kings County (Knipel, J.), dated May 3, 1999, which, after a hearing (Dowling, J.), designated him a level three sex offender pursuant to Correction Law article 6-C.

Ordered that the order is affirmed, without costs or disbursements.

Contrary to the defendant's contention, the Supreme Court's finding, in effect, that, inter alia, the Board of Examiners of Sex Offenders correctly determined that he should be assessed 25 points as to item number two, 20 points as to item number three, 20 points as to item number four, and 30 points as to item number five, for a total of 95 points on those items, is supported by clear and convincing evidence (see Correction Law § 168-n [3]). The Supreme Court properly considered the grand jury testimony in making its determination (see Correction Law § 168-n [3]; People v Awalt, 17 AD3d 336 [2005]; People v Thomas, 300 AD2d 379 [2002]). This total of 95 points, combined with the total of 25 points from the uncontested items numbers one and nine, gives the defendant a total of 120 points. This is above the 110 points needed to designate the defendant as a level three offender, and there is no reason to deviate therefrom.

In light of this determination, we need not reach the defendant's remaining contentions. Crane, J.P., Florio, Fisher and Dickerson, JJ., concur.