Opinion
2013-11-8
The PEOPLE of the State of New York, Respondent, v. William PICHCUSKIE, Defendant–Appellant.
David J. Farrugia, Public Defender, Lockport (Joseph G. Frazier of Counsel), for Defendant–Appellant. William Pichcuskie, Defendant–Appellant pro se.
David J. Farrugia, Public Defender, Lockport (Joseph G. Frazier of Counsel), for Defendant–Appellant. William Pichcuskie, Defendant–Appellant pro se.
Michael J. Violante, District Attorney, Lockport (Laura T. Bittner of Counsel), for Respondent.
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS AND VALENTINO, JJ.
MEMORANDUM:
Defendant appeals from an oral decision determining that he is a level three risk pursuant to the Sex Offender Registration Act ( [SORA] Correction Law § 168 et seq.). In the exercise of our discretion, we deem the appeal as properly taken from the order that was subsequently entered ( seeCPLR 5520[c]; see generally Adams v. Daughtery, 110 A.D.3d 1454, ––––, 972 N.Y.S.2d 774 [Oct. 4, 2013] ). Contrary to defendant's contention in his main brief, County Court properly determined after a SORA hearing that an upward departure was warranted based upon a videotaped statement of a victim and the affidavit of another person who described defendant's victimization of him when he was between the ages of 12 and 16. We reject defendant's contention in his main brief that the affidavit was improperly admitted at the hearing because he was never charged with the conduct specified in the affidavit, which we note was conduct that was reported after the statute of limitations had run. Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177, concerning a defendant's right to confront witnesses, does not apply in SORA hearings ( see People v. Bolton, 50 A.D.3d 990, 990, 857 N.Y.S.2d 190,lv. denied11 N.Y.3d 701, 864 N.Y.S.2d 389, 894 N.E.2d 653;People v. Dort, 18 A.D.3d 23, 25, 792 N.Y.S.2d 236,lv. denied4 N.Y.3d 885, 798 N.Y.S.2d 730, 831 N.E.2d 975), and an out-of-court statement of a victim constitutes reliable hearsay in SORA hearings ( see generally People v. Mingo, 12 N.Y.3d 563, 572–574, 883 N.Y.S.2d 154, 910 N.E.2d 983). We reject defendant's further contention in his main and pro se supplemental briefs that the People failed to present clear and convincing evidence to support the assessment of 20 points against him for fostering a relationship with the victim in the videotaped statement for the purpose of victimizing him. That assessment of points is supported by the reliable hearsay contained in the victim's videotaped statement admitted at the hearing ( see generally id. at 572–573, 883 N.Y.S.2d 154, 910 N.E.2d 983). We reject defendant's contention in his pro se supplemental brief that he was denied effective assistance of counsel at the SORA hearing ( see People v. Rotterman, 96 A.D.3d 1467, 1468, 945 N.Y.S.2d 912,lv. denied19 N.Y.3d 813, 951 N.Y.S.2d 723, 976 N.E.2d 252;People v. Bowles, 89 A.D.3d 171, 181, 932 N.Y.S.2d 112,lv. denied18 N.Y.3d 807, 940 N.Y.S.2d 563, 963 N.E.2d 1264;see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400). Finally, defendant's contention in his pro se supplemental brief that he should be a level one sex offender is improperly raised for the first time on appeal and we therefore do not address it ( see People v. Windham, 10 N.Y.3d 801, 802, 856 N.Y.S.2d 557, 886 N.E.2d 179).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.