        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

105
KA 10-02430
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DAVID L. GARDINER, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF
COUNSEL), FOR DEFENDANT-APPELLANT.

DAVID L. GARDINER, DEFENDANT-APPELLANT PRO SE.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (STEFANIE GRUBER,
VICTORIA M. WHITE OF COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Onondaga County Court (Joseph E.
Fahey, J.), entered November 16, 2010. 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.). We reject defendant’s
contention that County Court erred in assessing 30 points against him
under risk factor 3, for having three or more victims. Defendant was
charged with sexually abusing three children, including his 11-year-
old daughter. Although defendant pleaded guilty only to those counts
of the indictment relating to the abuse of his daughter, it is well
settled that, in determining the number of victims for SORA purposes,
the hearing court is not limited to the crime of which defendant was
convicted (see Sex Offender Registration Act: Risk Assessment
Guidelines and Commentary, at 5 [2006]; § 168-n [3]; People v Callan,
62 AD3d 1218, 1218-1219). Here, in making its determination, the
court was entitled to consider “reliable hearsay evidence,” including
the case summary, which supported the court’s determination as to the
number of victims (§ 168-n [3]; see People v Mingo, 12 NY3d 563,
572-573; People v Baker, 57 AD3d 1472, lv denied 12 NY3d 706).

     Defendant’s contention that the court should have granted a
downward departure to a level two risk is not preserved for our review
because defendant did not request a downward departure (see People v
Ratcliff, 53 AD3d 1110, lv denied 11 NY3d 708). Finally, contrary to
                                 -2-                           105
                                                         KA 10-02430

the contention raised by defendant in his pro se supplemental brief,
the court properly assessed 25 points against him under risk factor 2,
for having deviate sexual intercourse with at least one of the
victims. Although defendant was not convicted of having deviate
sexual intercourse with his daughter, the case summary states that he
had deviate sexual intercourse with the other two victims, and the
indictment charges him with having deviate sexual intercourse with one
of them. Moreover, the indictment was presumably based upon the
victims’ grand jury testimony, which also constitutes reliable hearsay
(see People v Howard, 52 AD3d 273, lv denied 11 NY3d 706).




Entered:   February 10, 2012                    Frances E. Cafarell
                                                Clerk of the Court
