PEOPLE v. JOHNSTON

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. James JOHNSTON, Defendant-Appellant.

Decided: April 28, 2006

PRESENT:  GORSKI, J.P., MARTOCHE, SMITH, GREEN, AND PINE, JJ. The Legal Aid Bureau of Buffalo, Inc., Buffalo (Jessamine I. Jackson of Counsel), for Defendant-Appellant. Frank J. Clark, District Attorney, Buffalo (Raymond C. Herman of Counsel), for Plaintiff-Respondent.

Defendant appeals from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.).   Contrary to the contention of defendant, the determination of his risk level is supported by the requisite clear and convincing evidence (see § 168-n [3] ).   Defendant was convicted upon his plea of guilty of two counts of sexual abuse in the first degree with respect to a niece and a nephew who were less than 11 years old (Penal Law § 130.65[3] ), and he admitted that he had contact with one of the children while he was under probation supervision in violation of a condition of probation (see People v. Roberge, 293 A.D.2d 913, 743 N.Y.S.2d 182, lv. denied 98 N.Y.2d 680, 746 N.Y.S.2d 470, 774 N.E.2d 235).   Also contrary to the contention of defendant, there was clear and convincing evidence that three or more persons were the victims of his sexual conduct.   Defendant admitted as part of his plea of guilty that he had sexual contact with two of the victims (see Correction Law § 168-n[3];  People v. Dort, 18 A.D.3d 23, 25, 792 N.Y.S.2d 236, lv. denied 4 N.Y.3d 885, 798 N.Y.S.2d 730, 831 N.E.2d 975;  People v. Brown, 302 A.D.2d 919, 920-921, 755 N.Y.S.2d 183) and, with respect to defendant's sexual contact with the third victim, County Court was entitled to rely upon defendant's admissions in the presentence report (see People v. Mitchell, 300 A.D.2d 377, 751 N.Y.S.2d 530, lv. denied 99 N.Y.2d 510, 760 N.Y.S.2d 101, 790 N.E.2d 275), as well as the sworn statement of that victim that defendant had sexual contact with her (see § 168-n[3] ).   Contrary to the further contention of defendant, the fact that he did not plead guilty to any offense regarding that victim is of no moment inasmuch as he admitted that he had sexual contact with her (see generally People v. Heichel, 20 A.D.3d 934, 798 N.Y.S.2d 633;  People v. Carlton, 307 A.D.2d 763, 764, 762 N.Y.S.2d 560).   Thus, “[u]pon our review of the record, we conclude that the court's determination of defendant's risk level was properly based on clear and convincing evidence related to the statutory factors” (Brown, 302 A.D.2d at 921, 755 N.Y.S.2d 183;  see People v. Scott, 288 A.D.2d 763, 764-765, 733 N.Y.S.2d 744).

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

MEMORANDUM: