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

The PEOPLE of the State of New York, Respondent, v. John R. BOVE, Appellant.

Decided: June 26, 2008

Before:  MERCURE, J.P., ROSE, KANE, MALONE JR. and KAVANAGH, JJ. The Goldstein Law Firm, P.C., Albany (Barrett Mack of counsel), for appellant. James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler of counsel), for respondent.

Appeal from an order of the County Court of Saratoga County (Scarano, J.), entered April 3, 2007, which classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act.

In 1990, defendant was convicted of attempted rape in the first degree and was sentenced to a term of 6 to 18 years in prison.   In anticipation of his release, the Board of Examiners of Sex Offenders evaluated and classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act (see Correction Law art. 6-C) (hereinafter SORA).   Following a risk assessment hearing, County Court adopted the Board's recommendation and classified defendant as a risk level III sex offender.   Defendant now appeals.

 Initially, we note that defendant's contention-that since he was convicted prior to the effective date of SORA, its application here violates the ex post facto prohibition in the U.S. Constitution-was raised for the first time on appeal and is therefore not preserved for our review (see People v. Ruz, 70 N.Y.2d 942, 943, 524 N.Y.S.2d 668, 519 N.E.2d 614 [1988];  People v. Lyday, 241 A.D.2d 950, 950, 661 N.Y.S.2d 325 [1997] ).   In any event, this Court has rejected ex post facto claims against SORA for the reasons stated in Doe v. Pataki, 120 F.3d 1263 (see People v. Lee, 292 A.D.2d 639, 640, 738 N.Y.S.2d 903 [2002] ).

 Defendant also contends that County Court abused its discretion in classifying him as a risk level III sex offender without considering his entire institutional record.   Clearly, the burden is on the People to establish the proper risk level classification by clear and convincing evidence (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] ).   Pursuant to SORA, an offender's postoffense conduct is considered in determining his risk level classification in risk factors assessing acceptance of responsibility and conduct while confined (see Sex Offender Registration Act:  Risk Assessment Guidelines, at 15-17 [2006] ).   Risk factor 13 concerns an offender's conduct while confined and, notably, “[a]n offender who has incurred serious disciplinary violations in prison poses a heightened risk of recidivism” (Sex Offender Registration Act:  Risk Assessment Guidelines, at 16 [2006] ). Here, defendant was assessed 10 points for unsatisfactory conduct while confined.   As evidence was presented that defendant has incurred 38 disciplinary violations, including 13 tier III violations, the People have supported, by the requisite clear and convincing evidence, the assessment of 10 points in this category.   Furthermore, defendant was given an opportunity to address his institutional record at the risk assessment hearing, and we do not find that he raised mitigating factors warranting a departure from this assessment (see People v. Hunt, 17 A.D.3d 713, 714, 792 N.Y.S.2d 698 [2005], lv. denied 5 N.Y.3d 763, 801 N.Y.S.2d 258, 834 N.E.2d 1268 [2005] ).

Finally, even if defendant's institutional record included proof that he had successfully completed the sex offender counseling program and County Court had found that he had accepted responsibility for his conduct, his risk assessment score would still rank him as a risk level III offender (see People v. LaRock, 45 A.D.3d 1121, 1123, 846 N.Y.S.2d 685 [2007] ).   Therefore, we find that County Court did not abuse its discretion in classifying defendant as a risk level III sex offender.

ORDERED that the order is affirmed, without costs.


MERCURE, J.P., ROSE, KANE and MALONE JR., JJ., concur.

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