Opinion
1168 KA 17–01522
11-09-2018
The PEOPLE of the State of New York, Respondent, v. Deon D. HAYES, Defendant–Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CARNI, CURRAN, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
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. ). We reject defendant's contention that he should not have been assessed 30 points under risk factor 5, age of victim, because the People did not establish by clear and convincing evidence that the victim was less than 11 years old. Defendant pleaded guilty to attempted course of sexual conduct against a child in the first degree under Penal Law § 130.75(1)(a), an element of which is that the victim is a child less than 11 years old. Inasmuch as "[f]acts previously ... elicited at the time of entry of a plea of guilty shall be deemed established by clear and convincing evidence and shall not be relitigated" for SORA purposes ( Correction Law § 168–n [3 ] ), County Court properly allocated 30 points under risk factor 5 (see People v. Asfour, 148 A.D.3d 1669, 1670, 50 N.Y.S.3d 648 [4th Dept. 2017], lv denied 29 N.Y.3d 914, 2017 WL 2743243 [2017] ; see also People v. Leach, 158 A.D.3d 1240, 1241, 70 N.Y.S.3d 734 [4th Dept. 2018], lv denied 31 N.Y.3d 905, 2018 WL 2013055 [2018] ).
Given the relative ages of defendant and his victim and the fact that the victim was less than 11 years old at the time of the crime, we conclude that the record establishes by clear and convincing evidence that defendant was 20 years old or younger at the time of the crime, and we thus reject defendant's contention that the court erroneously assessed 10 points under risk factor 8, age at first sex crime.