         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
825
KA 10-01585
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, LINDLEY, AND GREEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JOHN DANIELS, DEFENDANT-APPELLANT.


DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Supreme Court, Niagara County
(Richard C. Kloch, Sr., A.J.), entered April 16, 2009. The order
determined that defendant is a level three risk pursuant to the Sex
Offender Registration Act.

     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 three risk pursuant to the Sex Offender Registration Act
([SORA] Correction Law § 168 et seq.). Defendant was convicted in
1980 of, inter alia, rape in the first degree (Penal Law § 130.35 [1])
in Niagara County Court. The Judge who sentenced defendant thereafter
retired, and the SORA hearing subsequently was conducted by an Acting
Supreme Court Justice. Defendant failed to preserve for our review
his contention that the transfer of the SORA hearing to Supreme Court
was not authorized by 22 NYCRR 200.14 (see generally People v Ott, 83
AD3d 1495). In any event, section 200.14 has no application to a SORA
risk level determination “inasmuch as [a] SORA determination is not
part of the criminal action” (People v Ayala, 72 AD3d 1577, 1578, lv
denied 15 NY3d 816). Defendant also failed to preserve for our review
his contention that the SORA determination was not authorized inasmuch
as it was not made by the “sentencing court,” i.e., Niagara County
Court (Correction Law § 168-n [2]). In any event, we note that SORA
contemplates that risk level determinations may be made by a court
other than the “sentencing court” (see Correction Law § 168-o [2],
[3]). To the extent that defendant contends that Supreme Court lacked
subject matter jurisdiction to preside over the SORA hearing, we
conclude that defendant waived that contention. “Given that Supreme
Court had the power to hear the case, the transfer error defendant
alleges is the equivalent of an improper venue claim, which is not
jurisdictional in nature and is waived if not timely raised” (People v
                                 -2-                           825
                                                         KA 10-01585

Wilson, 14 NY3d 895, 897; see Ott, 83 AD3d at 1496), and here
defendant did not timely raise the alleged transfer error inasmuch as
his contention is raised for the first time on appeal.

     With respect to the merits, we agree with defendant that the
People failed to prove by the requisite clear and convincing evidence
that the rape victim was a stranger (see generally Correction Law §
168-n [3]), and thus that the court erred in assessing 20 points on
the risk assessment instrument (RAI) for risk factor 7. Reducing
defendant’s score on the RAI by 20 points, however, does not alter his
presumptive risk level (see People v Bove, 52 AD3d 1124, 1125), and
there is no indication in the record that defendant presented clear
and convincing evidence of special circumstances warranting a downward
departure or, indeed, that he even requested one (see People v
Ratcliff, 53 AD3d 1110, lv denied 11 NY3d 708). We therefore conclude
that the court properly determined that he is a level three risk.




Entered:   July 1, 2011                         Patricia L. Morgan
                                                Clerk of the Court
