         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1065
KA 10-02348
PRESENT: SCUDDER, P.J., SMITH, CENTRA, GREEN, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CHARLES CARBONE, DEFENDANT-APPELLANT.


DANIEL M. GRIEBEL, BUFFALO, FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHELLE L.
CIANCIOSA OF COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (John L.
Michalski, A.J.), entered August 10, 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
(Correction Law § 168 et seq.), an upward departure from the
presumptive level two risk pursuant to the risk assessment instrument
(RAI) score. Contrary to defendant’s contention, Supreme Court did
not abuse its discretion in refusing to grant a third adjournment to
enable his attorney to obtain additional records from his inmate file.
Even assuming, arguendo, that additional records would have supported
defendant’s contention that he should not have been assessed points
for category 12 on the RAI for refusal to participate in treatment, we
conclude that his score under the RAI would nevertheless have remained
at a level two (see generally People v Sherard, 73 AD3d 537, lv denied
15 NY3d 707). Furthermore, the request for the third adjournment was
made on the day before defendant was discharged from prison, and the
court was obligated to determine his risk level prior to defendant’s
parole (see § 168-n [1]).

     Contrary to defendant’s further contention, the court’s
determinations that defendant engaged in a continuous course of
conduct and that the victim was less than 10 years of age at the time
of the abuse are supported by the requisite clear and convincing
evidence (see Correction Law § 168-n [3]). That information was
contained in the presentence report, which states that the 12-year-old
victim reported during a child protective investigation that he was
forced to perform oral sex on defendant numerous times and that the
                                 -2-                          1065
                                                         KA 10-02348

abuse had occurred over a period of six years. Where, as here, the
information in the presentence report is “produced based on
information supplied by the victim . . . or some other knowledgeable
witness under circumstances bearing indicia of reliability,” the
reliable hearsay requirement is met (People v Mingo, 12 NY3d 563,
575). The court’s determination that defendant refused sex offender
treatment also is supported by clear and convincing evidence (see §
168-n [3]), despite the evidence that defendant made complaints to
various officials that he was “harassed” by the treatment counselor
(cf. People v Kearns, 68 AD3d 1713, 1714). Indeed, defendant signed a
document stating that he refused to return to sex offender counseling
at any facility “due to legali[ties].”

     Finally, although we agree with defendant that the court erred in
relying in part upon the duration of the abuse and the age of the
victim in departing from the presumptive level two risk, we
nevertheless conclude that the court properly determined that the
upward departure was warranted. Defendant’s perception that oral
sodomy between an adult and child was “normal” based upon his own
experience is not otherwise taken into consideration by the RAI, and
that perception compels the conclusion that defendant poses an
increased risk to public safety (see People v Hueber, 81 AD3d 1466, lv
denied 17 NY3d 701; People v May, 77 AD3d 1388).




Entered:   November 10, 2011                   Patricia L. Morgan
                                               Clerk of the Court
