PEOPLE v. WRAGG (2007)

 On appeal from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act ( [SORA] Correction Law § 168 et seq.), defendant contends that Supreme Court erred in relying upon the facts set forth in the case summary.   Defendant failed to preserve that contention for our review (see generally People v. Smith, 17 A.D.3d 1045, 793 N.Y.S.2d 782, lv. denied 5 N.Y.3d 705, 801 N.Y.S.2d 252, 834 N.E.2d 1261;  People v. Peterson, 8 A.D.3d 1124, 1124-1125, 778 N.Y.S.2d 626, lv. denied 3 N.Y.3d 607, 785 N.Y.S.2d 24, 818 N.E.2d 666) and, indeed, he waived that contention based on his own reliance on portions of the case summary at the SORA hearing (see generally People v. Tilley, 305 A.D.2d 1041, 758 N.Y.S.2d 891, lv. denied 100 N.Y.2d 588, 764 N.Y.S.2d 399, 796 N.E.2d 491).   In any event, defendant's contention lacks merit.   The case summary constitutes reliable hearsay, and the court properly relied on the facts in that summary in determining defendant's risk level (see People v. Vaughn, 26 A.D.3d 776, 777, 809 N.Y.S.2d 718;  see also People v. Tucker, 20 A.D.3d 938, 939, 797 N.Y.S.2d 339;  People v. Girup, 9 A.D.3d 913, 913-914, 780 N.Y.S.2d 698).   Contrary to defendant's further contention, the court properly assessed points under the factor concerning the failure to accept responsibility and the refusal to attend treatment or the expulsion from treatment (see People v. Cruz, 30 A.D.3d 1021, 1022, 815 N.Y.S.2d 883, lv. denied 7 N.Y.3d 712, 824 N.Y.S.2d 603, 857 N.E.2d 1134;  People v. Noriega, 26 A.D.3d 767, 808 N.Y.S.2d 529, lv. denied 6 N.Y.3d 713, 816 N.Y.S.2d 748, 849 N.E.2d 971;  Tilley, 305 A.D.2d at 1041-1042, 758 N.Y.S.2d 891), as well as under the factor concerning unsatisfactory conduct while confined (see Vaughn, 26 A.D.3d at 777, 809 N.Y.S.2d 718;  Peterson, 8 A.D.3d at 1124, 778 N.Y.S.2d 626).   Finally, defendant “failed to present clear and convincing evidence of the existence of special circumstance[s] to warrant ․ [a] downward departure ․ from the presumptive risk level” (Vaughn, 26 A.D.3d at 777, 809 N.Y.S.2d 718 [internal quotation marks omitted];  see People v. Marks, 31 A.D.3d 1142, 1143, 817 N.Y.S.2d 555, lv. denied 7 N.Y.3d 715, 826 N.Y.S.2d 181, 859 N.E.2d 921).   Contrary to the contention of defendant, his poor physical health did not warrant a downward departure (see generally People v. Mothersell, 26 A.D.3d 620, 621, 808 N.Y.S.2d 510).   Defendant was convicted of an offense that occurred within his own home, thus indicating that any limited mobility resulting from his medical conditions did not reduce his risk to reoffend.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: