People v Brown

People v Brown 2012 NY Slip Op 00060 Decided on January 5, 2012 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: January 5, 2012
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[*1]THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v

COREY P. BROWN, Appellant.

Calendar Date: November 14, 2011
Before: Mercure, Acting P.J., Rose, Lahtinen, Kavanagh and McCarthy, JJ.


Richard V. Manning, Parishville, for appellant.
P. David Soares, District Attorney, Albany (Kenneth
C. Weafer of counsel), for respondent.

MEMORANDUM AND ORDER


McCarthy, J.

Appeal from an order of the Supreme Court (Teresi, J.), entered June 23, 2008 in Albany County, which classified defendant as a risk level III sex offender and a sexually violent offender pursuant to the Sex Offender Registration Act.

In 1998, defendant was convicted in Florida of sexual battery. In 2005, defendant was convicted of rape in the third degree and endangering the welfare of a child in New York. In 2008, the Board of Examiners of Sex Offenders prepared a risk assessment instrument pursuant to the Sex Offender Registration Act (see Correction Law art 6-C) presumptively classifying defendant as a risk level III sex offender (135 points). Following a hearing, Supreme Court adopted the Board's recommendation and classified defendant as a risk level III sex offender and a sexually violent offender. Defendant now appeals.

We affirm. Defendant failed to challenge any of the points assessed on the risk assessment instrument that presumptively classified him as a risk level III offender, did not request a downward departure and his counsel acknowledged that his prior convictions subjected him to a mandatory override. Further, he raised no objection to the proof presented at the hearing, did not offer any evidence and did not testify. In light of defendant's failure to raise any issue regarding the classification of him as a risk level III sex offender before Supreme Court, defendant's claim that the court's order adopting that classification was not adequately supported [*2]by findings of fact and conclusions of law is not properly before us (see People v Jordan, 62 AD3d 1176, 1176-1177 [2009], lv denied 16 NY3d 709 [2011]).

Mercure, Acting P.J., Rose, Lahtinen and Kavanagh, JJ., concur.

ORDERED that the order is affirmed, without costs.