PEOPLE v. DAVIS

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. King DAVIS, Defendant-Appellant.

Decided: April 29, 2005

PRESENT:  HURLBUTT, J.P., SCUDDER, GORSKI, PINE, AND LAWTON, JJ. Frank H. HiscockLegal Aid Society, Syracuse (Philip Rothschild of Counsel), for Defendant-Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of Counsel), for Plaintiff-Respondent.

 On a prior appeal, we reversed an order determining that defendant was a level three sex offender under the Sex Offender Registration Act ( [SORA] Correction Law § 168 et seq.), and we remitted the matter to County Court for a new hearing on the ground that the court erred in refusing to permit defendant to present evidence “on the issue whether ‘the risk of repeat offense is high and there exists a threat to the public safety’ ” (People v. Davis, 300 A.D.2d 1037, 1037, 751 N.Y.S.2d 922).   Defendant now appeals from an order that, following the new hearing, again classified him as a level three sex offender.   We are unable to review the contention of defendant that the court abused its discretion in classifying him as a level three sex offender inasmuch as he failed to include in the record the risk assessment instrument and any of the other documents on which the court relied in so classifying defendant (see People v. Taylor, 231 A.D.2d 945, 946, 647 N.Y.S.2d 902, lv. denied 89 N.Y.2d 930, 654 N.Y.S.2d 733, 677 N.E.2d 305;  see also People v. Gasparik, 52 N.Y.2d 309, 320, 438 N.Y.S.2d 242, 420 N.E.2d 40, rearg. denied 53 N.Y.2d 797, 439 N.Y.S.2d 1030, 422 N.E.2d 596).   In addition, we reject the contention of defendant that the court abused its discretion in denying his request for a second adjournment to enable him to secure documents establishing that the documents on which the court relied contained factual errors (see generally People v. Houk, 222 A.D.2d 1074, 636 N.Y.S.2d 237).   The court had previously granted defendant a two-week adjournment to allow him to gather and submit to the court any documents he wished the court to consider.

Defendant failed to challenge the constitutionality of SORA in a proper manner by commencing a declaratory judgment action in Supreme Court (see People v. Langdon, 258 A.D.2d 937, 685 N.Y.S.2d 877;  see also CPLR 3001;  Matter of Santiago v. Bristol, 273 A.D.2d 813, 814, 709 N.Y.S.2d 724, appeals dismissed 95 N.Y.2d 847, 713 N.Y.S.2d 520, 735 N.E.2d 1286, lv. denied 95 N.Y.2d 848, 713 N.Y.S.2d 520, 735 N.E.2d 1286;  Schultz v. City of Port Jervis, 242 A.D.2d 699, 700, 662 N.Y.S.2d 591;  see generally Cass v. State of New York, 58 N.Y.2d 460, 463, 461 N.Y.S.2d 1001, 448 N.E.2d 786, rearg. denied 60 N.Y.2d 586, 467 N.Y.S.2d 1031, 454 N.E.2d 127).   In any event, we conclude that defendant's constitutional challenges to SORA are lacking in merit.

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

MEMORANDUM: