PEOPLE v. MILTON (2008)

Appeal from an order of the County Court of St. Lawrence County (Richards, J.), entered June 25, 2007, which classified defendant as a risk level II sex offender pursuant to the Sex Offender Registration Act.

Defendant pleaded guilty to criminal sexual act in the third degree and was thereafter sentenced by County Court to 10 years of probation.   After a sex offender registration hearing, the court assigned defendant a risk score of 85 points and classified him as a risk level II sex offender pursuant to the Sex Offender Registration Act (see Correction Law art. 6-C).   Defendant now appeals.

 Defendant initially contends that the assessment of 20 points under the category of “[r]elationship with [the] victim” was erroneous.   We disagree.   The hearing and the record evidence established that, while the victim knew defendant's girlfriend, defendant was a stranger to the victim for the purpose of risk assessment (see People v. Kaminski, 38 A.D.3d 1127, 1128, 833 N.Y.S.2d 266 [2007], lv. denied 9 N.Y.3d 803, 840 N.Y.S.2d 763, 872 N.E.2d 876 [2007];  see also People v. Lewis, 45 A.D.3d 1381, 1381-1382, 845 N.Y.S.2d 585 [2007], lv. denied 10 N.Y.3d 703, 854 N.Y.S.2d 103, 883 N.E.2d 1010 [2008];  People v. Gaines, 39 A.D.3d 1212, 1212-1213, 834 N.Y.S.2d 417 [2007], lv. denied 9 N.Y.3d 803, 840 N.Y.S.2d 763, 872 N.E.2d 876 [2007];  cf. People v. McGraw, 24 A.D.3d 525, 526, 808 N.Y.S.2d 276 [2005] ), i.e., defendant was “not an actual acquaintance of the victim” (Sex Offender Registration Act Risk Assessment Guidelines and Commentary, at 13 [2006] ).   Defendant's other assertion-that 20 points were improperly assigned under the category of number of victims-was not raised before County Court and, as a result, is unpreserved for our review (see People v. Coleman, 45 A.D.3d 1118, 1118, 846 N.Y.S.2d 460 [2007], lv. denied 10 N.Y.3d 705, 857 N.Y.S.2d 38, 886 N.E.2d 803 [2008] ).   In any event, we reject it as County Court was not limited to the crime to which defendant pleaded guilty but, instead, appropriately considered the circumstances of the underlying crime as reflected in reliable evidence in the record (see People v. Ramirez, 53 A.D.3d 990, 990, 863 N.Y.S.2d 114 [2008];  People v. Hazen, 47 A.D.3d 1091, 1092, 850 N.Y.S.2d 267 [2008];  People v. LaRock, 45 A.D.3d 1121, 1122-1123, 846 N.Y.S.2d 685 [2007];  People v. Lovelace, 39 A.D.3d 728, 728, 832 N.Y.S.2d 439 [2007], lv. denied 9 N.Y.3d 803, 840 N.Y.S.2d 763, 872 N.E.2d 876 [2007];  see also Correction Law § 168-n [3] ).   In this instance, the record reveals that a second underage girl was present during defendant's criminal conduct.   Based upon the foregoing, the order classifying defendant as a risk level II sex offender is affirmed.

ORDERED that the order is affirmed, without costs.

SPAIN, J.

CARDONA, P.J., MERCURE, LAHTINEN and MALONE JR., JJ., concur.