Opinion
2015-03-27
The PEOPLE of the State of New York, Respondent, v. Gordy A. AKINPELU, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Alan Williams of Counsel), for Defendant–Appellant. Lawrence Friedman, District Attorney, Batavia (William G. Zickl of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Alan Williams of Counsel), for Defendant–Appellant. Lawrence Friedman, District Attorney, Batavia (William G. Zickl of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, and WHALEN, JJ.
MEMORANDUM:
Defendant appeals from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act ( [SORA] Correction Law § 168 et seq.). At the SORA hearing, defendant's attorney informed County Court that he reviewed the risk assessment instrument with defendant and that he and defendant would “ not be contesting those scores.” The court thus adopted the recommendation of the Board of Examiners of Sex Offenders, which assessed 90 points against defendant, making him a presumptive level two risk. Defendant did not request a downward departure, and the court determined that he was a level two risk. Defendant now contends that he was not afforded due process at the hearing because, among other reasons, the court did not conduct a sufficient inquiry to determine whether he knowingly, intelligently and voluntarily waived his right to contest the level two risk designation. As defendant concedes, however, his contention is unpreserved for our review because he did not assert at the hearing that his due process rights were being violated ( see People v. Kyle, 64 A.D.3d 1177, 1178, 881 N.Y.S.2d 759, lv. denied13 N.Y.3d 709, 2009 WL 3379124; see also People v. Costas, 46 A.D.3d 475, 476, 848 N.Y.S.2d 643, lv. denied10 N.Y.3d 716, 862 N.Y.S.2d 337, 892 N.E.2d 403; People v. Gliatta, 27 A.D.3d 441, 441, 810 N.Y.S.2d 342). In any event, “the due process protections required for a risk level classification proceeding ‘are not as extensive as those required in a plenary criminal or civil trial’ ” (Doe v. Pataki, 3 F.Supp.2d 456, 470; see People v. Erb, 59 A.D.3d 1020, 1020–1021, 872 N.Y.S.2d 775), and defendant has cited no authority to support his contention that “a personal allocution” is required in order to waive the right to a SORA hearing (People v. Dexter, 21 A.D.3d 403, 404, 799 N.Y.S.2d 807, lv. denied 5 N.Y.3d 716, 807 N.Y.S.2d 16, 840 N.E.2d 1030; see Costas, 46 A.D.3d at 476, 848 N.Y.S.2d 643).
We have reviewed defendant's remaining contentions and conclude that none warrants reversal or modification.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.