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

1000
KA 13-01450
PRESENT: CENTRA, J.P., FAHEY, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DENNIS J. SINCERBEAUX, DEFENDANT-APPELLANT.


JAMES S. KERNAN, PUBLIC DEFENDER, LYONS (DAVID M. PARKS OF COUNSEL),
FOR DEFENDANT-APPELLANT.

RICHARD M. HEALY, DISTRICT ATTORNEY, LYONS (JACQUELINE MCCORMICK OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Wayne County Court (Dennis M. Kehoe,
J.), dated May 6, 2013. 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: On appeal from an order determining that he is a
level three risk pursuant to the Sex Offender Registration Act
(Correction Law § 168 et seq.), defendant contends that County Court
erred in assessing 30 points under risk factor 9 because his prior
conviction of endangering the welfare of a child was nonsexual in
nature. We reject that contention and conclude that “ ‘[i]t was
within the court’s discretion to [classify defendant as a level three
risk] . . . based upon clear and convincing evidence of the facts in
support thereof’ ” (People v Foster, 13 AD3d 1117, 1118; see People v
Catchings, 56 AD3d 1181, 1182, lv denied 12 NY3d 701; People v
Billingsley, 6 AD3d 1170, 1170, lv denied 3 NY3d 605).

     We reject defendant’s further contention that the court erred in
crediting the statements of the victim when assessing points under
risk factor 1, for defendant’s use of forcible compulsion, and risk
factor 5, for the age of the victim. The People presented “reliable
hearsay evidence, in the form of the victim’s statement . . . ,” that
she was 13 years old when the sexual abuse began and that defendant
had used forcible compulsion (People v Wilson, 117 AD3d 1557, 1558;
see People v Law, 94 AD3d 1561, 1563, lv denied 19 NY3d 809).
Furthermore, the victim’s statement was corroborated by the statement
of her sister, and we therefore conclude that the court did not err in
resolving the credibility issue in favor of the People (see People v
Terrill, 26 AD3d 846, 846-847, lv denied 7 NY3d 701). Finally, “[t]o
the extent that defendant contends that the court improperly assessed
                                 -2-                          1000
                                                         KA 13-01450

10 points pursuant to risk factor 1, for the use of violence, because
forcible compulsion was not an element of the crime of which he was
convicted, it is well settled that ‘the court was not limited to
considering only the crime of which . . . defendant was convicted in
making its determination’ ” (Wilson, 117 AD3d at 1558).




Entered:   October 3, 2014                      Frances E. Cafarell
                                                Clerk of the Court
