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

1246
KA 13-00378
PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TIMOTHY SLOTMAN, DEFENDANT-APPELLANT.


LAW OFFICE OF SIMON F. MANKA, BUFFALO (SIMON F. MANKA OF COUNSEL), FOR
DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Erie County Court (Kenneth F. Case,
J.), entered May 3, 2012. The order determined that defendant is a
level two risk pursuant to the Sex Offender Registration Act.

     It is hereby ORDERED that the order so appealed from is
unanimously modified in the interest of justice by vacating
defendant’s designation as a sexually violent offender and as modified
the order is affirmed without costs.

     Memorandum: On appeal from an order determining that he is a
level two risk pursuant to the Sex Offender Registration Act
(Correction Law § 168 et seq.), defendant contends that County Court’s
determination is not supported by the requisite clear and convincing
evidence (see § 168-n [3]). We reject that contention. The court
properly considered statements in the case summary and presentence
report in assessing risk factor points against him inasmuch as those
statements constituted reliable hearsay (see People v Shepard, 103
AD3d 1224, 1224, lv denied 21 NY3d 856; People v Perrah, 99 AD3d 1257,
1257-1258, lv denied 20 NY3d 854; see also People v Mingo, 12 NY3d
563, 572-573).

     Contrary to defendant’s contention, the court properly assessed
20 points against him under risk factor 4, for continuing course of
sexual misconduct, despite the fact that defendant pleaded guilty to
only one count of rape in the second degree (Penal Law § 130.30 [1]).
“[T]he court is ‘not limited to the crime of conviction’ ” in
assessing points for that risk factor (People v Hubel, 70 AD3d 1492,
1493; see Sex Offender Registration Act: Risk Assessment Guidelines
and Commentary, at 5 [2006]). Defendant also challenges the
assessment of those points on the ground that they were not assessed
based on reliable hearsay. We reject that challenge and conclude that
the court properly considered as reliable hearsay defendant’s
                                 -2-                         1246
                                                        KA 13-00378

statement in the presentence report, as clarified by defense counsel
during the hearing, that defendant had been having “inappropriate
relations” with the victim for three years (see Mingo, 12 NY3d at 572-
573; see generally People v Chico, 90 NY2d 585, 589). Contrary to
defendant’s further contention, the court also properly assessed 10
points against him under risk factor 8, for the age at which defendant
committed his first act of sexual misconduct, based upon defendant’s
admission in the presentence report that he began abusing the victim
when he was 19 years old (see Mingo, 12 NY3d at 572-573; Chico, 90
NY2d at 589). We therefore conclude that the People met their
“ ‘burden of proving the facts supporting the risk level
classification sought by clear and convincing evidence’ ” (People v
McDaniel, 27 AD3d 1158, 1159, lv denied 7 NY3d 703). We further
conclude that, under the circumstances of this case, the court
properly rejected defendant’s request for a downward departure
inasmuch as defendant failed to present clear and convincing evidence
of special circumstances justifying such treatment (see id.).

     Finally, defendant contends that the court incorrectly designated
him a “sexually violent offender” inasmuch as he was not convicted of
a sexually violent offense within the meaning of Correction Law § 168-
a (7) (b) (see § 168-a [3] [a]). Although defendant failed to
preserve that contention for our review (see People v Young, 108 AD3d
1232, 1232, lv denied 22 NY3d 853, rearg denied ___ NY3d ___ [Dec. 17,
2013]), we nevertheless agree with him, and we therefore modify the
order accordingly.




Entered:   December 27, 2013                   Frances E. Cafarell
                                               Clerk of the Court
