Opinion
2012-06-7
The PEOPLE of the State of New York, Respondent, v. Thomas ROGOWSKI, Appellant.
George J. Hoffman Jr., Albany, for appellant. Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.
George J. Hoffman Jr., Albany, for appellant. Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.
Before: ROSE, J.P., MALONE JR., STEIN, GARRY and EGAN JR., JJ.
STEIN, J.
Appeal from an order of the County Court of Schenectady County (Drago, J.), entered January 18, 2012, which classified defendant as a risk level III sex offender, a sexually violent offender and a predicate sex offender pursuant to the Sex Offender Registration Act.
Defendant was convicted of two counts of rape in the first degree and one count of endangering the welfare of a child, stemming from the rape of his niece who, at the time, was under the age of 11. Prior to defendant's scheduled release from prison, County Court conducted a risk level assessment hearing pursuant to the Sex Offender Registration Act ( see Correction Law art. 6–C), assigned him a total risk factor score of 125, resulting in a risk level III assessment, and designated him as a sexually violent offender and a predicate sex offender. Defendant now appeals and we affirm.
Although County Court executed the standardized form designating defendant's risk level classification ( see People v. Kennedy, 79 A.D.3d 1470, 1470, 912 N.Y.S.2d 453 [2010] ), which is neither identified as an order nor contains “so ordered” language ( see People v. Joslyn, 27 A.D.3d 1033, 1035, 811 N.Y.S.2d 807 [2006] ), an actual order was not entered until January 2012. Therefore, defendant's January 2011 notice of appeal is premature. Nevertheless, in the interest of judicial economy, we will excuse this defect, treat the notice of appeal as valid and address the merits ( seeCPLR 5520[c]; Signature Health Ctr., LLC v. State of New York, 92 A.D.3d 11, 13 n., 935 N.Y.S.2d 357 [2011];Davis v. Wyeth Pharms., Inc., 86 A.D.3d 907, 908 n. 2, 928 N.Y.S.2d 377 [2011] ).
Defendant contends that County Court improperly allocated 10 points for failure to accept responsibility and 20 points for finding his actions to have been part of a continuing course of sexual misconduct. With regard to the former, County Court noted that defendant had not yet completed a sex offender treatment program. While defendant was on the waiting list for such a program, even its completion would not have precluded a finding of failure to accept responsibility ( see People v. Legall, 63 A.D.3d 1305, 1306, 883 N.Y.S.2d 318 [2009],lv. denied13 N.Y.3d 706, 2009 WL 2998139 [2009] ). Moreover, defendant's insistence on his innocence and failure to accept responsibility were noted in the presentence investigation report, as well as in the risk assessment instrument and case summary, all of which were properly considered by the court ( seeCorrection Law § 168–n.[3]; People v. Mingo, 12 N.Y.3d 563, 572–573, 883 N.Y.S.2d 154, 910 N.E.2d 983 [2009];People v. Burch, 90 A.D.3d 1429, 1431, 936 N.Y.S.2d 351 [2011];People v. Hammer, 82 A.D.3d 1456, 1457, 918 N.Y.S.2d 751 [2011] ). Thus, in our view, the People met their burden of establishing this risk factor by clear and convincing evidence ( see People v. McFall, 93 A.D.3d 962, 963, 939 N.Y.S.2d 723 [2012];People v. Gleason, 85 A.D.3d 1508, 1508, 926 N.Y.S.2d 220 [2011],lv. denied17 N.Y.3d 711, 2011 WL 4388586 [2011];People v. Stewart, 61 A.D.3d 1059, 1060, 876 N.Y.S.2d 208 [2009] ).
We likewise find that clear and convincing evidence—including the presentence investigation report, case summary, victim's statement and the grand jury testimony of the victim's grandmother—supports County Court's assessment of points for engaging in a continuing course of sexual misconduct. The statement of defendant's niece, together with her grandmother's testimony, clearly indicate that defendant engaged in sexual conduct with his niece on more than one occasion. In addition, the record indicates that defendant was previously convicted of sexual abuse in the second degree with respect to a different victim ( see People v. Wizes, 79 A.D.3d 1543, 1543–1544, 917 N.Y.S.2d 712 [2010];People v. Willette, 67 A.D.3d 1259, 1260–1261, 889 N.Y.S.2d 299 [2009],lv. denied14 N.Y.3d 704, 2010 WL 606359 [2010];People v. Wright, 53 A.D.3d 963, 964, 862 N.Y.S.2d 623 [2008],lv. denied11 N.Y.3d 710, 872 N.Y.S.2d 72, 900 N.E.2d 555 [2008] ).
ORDERED that the order is affirmed, without costs.
ROSE, J.P., MALONE JR., GARRY and EGAN JR., JJ., concur.