PEOPLE v. FRANK (2007)

Defendant appeals from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act ( [SORA] Correction Law § 168 et seq.).   Contrary to the contention of defendant, County Court properly determined that he is subject to the requirements of SORA (see People v. Jordan, 31 A.D.3d 1196, 818 N.Y.S.2d 718, lv. denied 7 N.Y.3d 714, 824 N.Y.S.2d 606, 857 N.E.2d 1137;  People v. Curley, 285 A.D.2d 274, 276, 730 N.Y.S.2d 625, lv. denied 97 N.Y.2d 607, 738 N.Y.S.2d 290, 764 N.E.2d 394).   Further, the court's determination with respect to defendant's risk level is supported by the requisite clear and convincing evidence, including “reliable hearsay” (§ 168-n [3];  see People v. Vaughn, 26 A.D.3d 776, 776-777, 809 N.Y.S.2d 718;  People v. Hegazy, 25 A.D.3d 675, 676, 811 N.Y.S.2d 700).   In particular, we conclude that the court appropriately assessed 145 points against defendant, including 15 points for his failure to take responsibility for his crimes.

There is no merit to defendant's contention that SORA violates the constitutional prohibition against ex post facto laws (see Doe v. Pataki, 120 F.3d 1263, 1271-1285, cert. denied 522 U.S. 1122, 118 S.Ct. 1066, 140 L.Ed.2d 126;  People v. Brown, 302 A.D.2d 919, 921, 755 N.Y.S.2d 183;  People v. Hughes, 269 A.D.2d 858, 703 N.Y.S.2d 767, lv. denied 95 N.Y.2d 798, 711 N.Y.S.2d 166, 733 N.E.2d 238).   Defendant's remaining constitutional challenges to SORA are unpreserved for our review (see 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;  Brown, 302 A.D.2d at 920, 755 N.Y.S.2d 183;  People v. Davis, 300 A.D.2d 1037, 1037-1038, 751 N.Y.S.2d 922).   The court properly declined to recuse itself (see Rochester Community Individual Practice Assn. v. Excellus Health Plan [Appeal No. 2], 305 A.D.2d 1007, 1008, 758 N.Y.S.2d 576, lv. dismissed 1 N.Y.3d 546, 775 N.Y.S.2d 242, 807 N.E.2d 292;  Matter of Angie M.P., 291 A.D.2d 932, 932-933, 737 N.Y.S.2d 490, lv. denied 98 N.Y.2d 602, 744 N.Y.S.2d 762, 771 N.E.2d 835;  Matter of Rumsey v. Niebel, 286 A.D.2d 564, 565, 730 N.Y.S.2d 591).   We have considered defendant's remaining contentions and conclude that they are without merit.

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

MEMORANDUM: