PEOPLE v. COLEMAN (2007)

Appeal from an order of the County Court of Albany County (Breslin, J.), entered July 28, 2006, which classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act.

Defendant pleaded guilty in 2005 to sexual abuse in the second degree of a four-year-old child and was sentenced to a one-year jail term.   Upon completion of his sentence, the Board of Examiners of Sex Offenders prepared a risk assessment instrument pursuant to the Sex Offender Registration Act (see Correction Law art. 6-C), calculating a score of 135 points, including 30 points under the risk factor for having a prior youthful offender adjudication for a sex crime, and recommending that defendant be classified as a risk level III sex offender.   Following a hearing, County Court agreed and issued an order classifying him as such.   Defendant now appeals.

 While defendant contends that County Court's risk level III classification is not supported by clear and convincing evidence, we disagree (see People v. Lesch, 38 A.D.3d 1129, 1130, 833 N.Y.S.2d 268 [2007], lv. denied 8 N.Y.3d 816, 839 N.Y.S.2d 455, 870 N.E.2d 696 [2007];  People v. Dickison, 24 A.D.3d 980, 981, 805 N.Y.S.2d 198 [2005], lv. denied 6 N.Y.3d 709, 813 N.Y.S.2d 45, 846 N.E.2d 476 [2006] ).   Defendant's claim that his prior youthful offender adjudication for sexual abuse in the second degree should not be scored against him is meritless, as such adjudications are considered crimes for the purposes of determining the likelihood of re-offense and danger to the public (see People v. Whaley, 38 A.D.3d 1106, 1107, 833 N.Y.S.2d 673 [2007];  People v. Dort, 18 A.D.3d 23, 26, 792 N.Y.S.2d 236 [2005], lv. denied 4 N.Y.3d 885, 798 N.Y.S.2d 730, 831 N.E.2d 975 [2005];  People v. Moore, 1 A.D.3d 421, 421, 766 N.Y.S.2d 700 [2003], lv. denied 2 N.Y.3d 743, 778 N.Y.S.2d 469, 810 N.E.2d 922 [2004] ).   Defendant's other claims, concerning the assessment of 10 points based on his failure to accept responsibility and 15 points for being released without supervision, were not raised before County Court and, therefore, are not preserved for our review (see CPL 470.05[2];  People v. Oginski, 35 A.D.3d 952, 953, 824 N.Y.S.2d 810 [2006] ).   In any event, these claims are also meritless as the record supports County Court's assessments in that defendant failed to accept responsibility during the presentence investigation and he is admittedly not subject to any form of parole or probation supervision (see People v. Hyson, 27 A.D.3d 919, 920, 811 N.Y.S.2d 469 [2006];  People v. Swackhammer, 25 A.D.3d 892, 892, 809 N.Y.S.2d 227 [2006] ).   Finally, defendant has failed to demonstrate the required special circumstances to justify a downward departure from the Board's recommendation (see People v. Dickison, 24 A.D.3d at 981, 805 N.Y.S.2d 198;  People v. Douglas, 18 A.D.3d 967, 968, 794 N.Y.S.2d 730 [2005], lv. denied 5 N.Y.3d 710, 804 N.Y.S.2d 34, 837 N.E.2d 733 [2005] ).

ORDERED that the order is affirmed, without costs.

MUGGLIN, J.

MERCURE, J.P., ROSE, LAHTINEN and KANE, JJ., concur.