Opinion
2012-09-27
The PEOPLE of the State of New York, Respondent, v. Joseph J. RADAGE JR., Appellant.
Thomas F. Garner, Middleburgh, for appellant. Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), for respondent.
Thomas F. Garner, Middleburgh, for appellant. Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), for respondent.
Before: MERCURE, J.P., SPAIN, MALONE JR., KAVANAGH and EGAN JR., JJ.
KAVANAGH, J.
Appeal from an order of the County Court of Broome County (Cawley, J.), entered August 1, 2011, which classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act.
Following a jury trial, defendant was convicted of rape in the second degree and criminal sexual act in the second degree, and was sentenced to consecutive prison terms of 2 1/3 to 7 years. Shortly before the maximum expiration of his sentence and impending release, the Board of Examiners of Sex Offenders prepared a risk assessment instrument in accordance with the Sex Offender Registration Act ( see Correction Law art. 6–C) that presumptively classified defendant as a risk level III sex offender. Following a hearing, County Court adopted the Board's recommendation and classified defendant as a risk level III sex offender. Defendant appeals.
Initially, we are unpersuaded by defendant's contention that the case summary—which was based upon a review of defendant's presentence investigation, prior criminal history and postoffense behavior—was insufficient, standing alone, to constitute reliable hearsay ( see People v. McFall, 93 A.D.3d 962, 963, 939 N.Y.S.2d 723 [2012] ). Turning to the assessment of points, defendant contends that County Court erred in assessing 30 points under risk factor 3 for having three or more victims when defendant was only convicted of victimizing one child. The case summary reveals, however, that the investigation into the instant offense uncovered three additional female victims, all of whom gave detailed statements of the sexual contact ( see generally People v. Ramirez, 53 A.D.3d 990, 990–991, 863 N.Y.S.2d 114 [2008],lv. denied11 N.Y.3d 710, 868 N.Y.S.2d 602, 897 N.E.2d 1087 [2008] ). To the extent that defendant asserts that the assessment of 20 points under risk factor 6 for a physically helpless victim resulted in double counting because he had already been assessed 20 points under risk factor 5 for the age of the victim, we note that “[p]oints may be properly assigned under both categories where a child victim is, as here, asleep at the beginning of the sexual offense” ( People v. Rhodehouse, 88 A.D.3d 1030, 1032, 930 N.Y.S.2d 105 [2011];see People v. Ramirez, 53 A.D.3d at 990–991, 863 N.Y.S.2d 114). County Court also properly assessed 15 points based upon defendant's failure to accept responsibility, as evidenced by his refusal to participate in sex offender treatment ( see People v. Lockett, 67 A.D.3d 1266, 1267, 889 N.Y.S.2d 301 [2009],lv. denied14 N.Y.3d 708, 2010 WL 1707923 [2010] ). Finally, because defendant was released without any parole, probation or supervision, the assessment of 15 points under risk factor 14 was proper ( see People v. Briggs, 86 A.D.3d 903, 904, 928 N.Y.S.2d 108 [2011] ). Accordingly, clear and convincing evidence supports County Court's classification of defendant as a risk level III sex offender ( see People v. McFall, 93 A.D.3d at 963, 939 N.Y.S.2d 723), and we find no mitigating factors unaccounted for to warrant a downward departure therefrom ( see People v. Lockett, 67 A.D.3d at 1267, 889 N.Y.S.2d 301).
ORDERED that the order is affirmed, without costs.