THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. DEON HAYES DEFENDANT APPELLANT

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

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. DEON D. HAYES, DEFENDANT–APPELLANT.

KA 17–01522

Decided: November 09, 2018

PRESENT:  WHALEN, P.J., CARNI, CURRAN, TROUTMAN, AND WINSLOW, JJ. TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF COUNSEL), FOR DEFENDANT–APPELLANT.

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act ( [SORA] Correction Law § 168 et seq.).  We reject defendant's contention that he should not have been assessed 30 points under risk factor 5, age of victim, because the People did not establish by clear and convincing evidence that the victim was less than 11 years old.  Defendant pleaded guilty to attempted course of sexual conduct against a child in the first degree under Penal Law § 130.75(1)(a), an element of which is that the victim is a child less than 11 years old.  Inasmuch as “[f]acts previously ․ elicited at the time of entry of a plea of guilty shall be deemed established by clear and convincing evidence and shall not be relitigated” for SORA purposes (Correction Law § 168–n [3] ), County Court properly allocated 30 points under risk factor 5 (see People v. Asfour, 148 AD3d 1669, 1670 [4th Dept 2017], lv denied 29 NY3d 914 [2017];  see also People v. Leach, 158 AD3d 1240, 1241 [4th Dept 2018], lv denied 31 NY3d 905 [2018] ).

Given the relative ages of defendant and his victim and the fact that the victim was less than 11 years old at the time of the crime, we conclude that the record establishes by clear and convincing evidence that defendant was 20 years old or younger at the time of the crime, and we thus reject defendant's contention that the court erroneously assessed 10 points under risk factor 8, age at first sex crime.

Mark W. Bennett

Clerk of the Court