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

416
KA 08-02185
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

JASON FLEMING, DEFENDANT-APPELLANT.


MICHAEL CONROY, AUBURN, FOR DEFENDANT-APPELLANT.

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (HEATHER M. DESTEFANO OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Cayuga County Court (Thomas G. Leone,
J.), entered June 20, 2008. The order determined that defendant is a
level one risk pursuant to the Sex Offender Registration Act.

     It is hereby ORDERED that said appeal is unanimously dismissed in
part and the order otherwise is affirmed without costs.

     Memorandum: Defendant appeals from an order determining that he
is a level one risk pursuant to the Sex Offender Registration Act (see
Correction Law § 168 et seq.). Defendant does not challenge his risk
level designation, but instead contends only that he should not have
been required to register as a sex offender because the crimes of
which he was convicted under the Uniform Court of Military Justice
have no equivalent registerable offenses in New York. “A challenge to
the . . . initial determination [of the Board of Examiners of Sex
Offenders] that a defendant is a registerable sex offender constitutes
a challenge to a determination of an administrative agency and is not
properly raised in the subsequent court proceeding involving the
separate and distinct risk level determination,” and thus the appeal
must be dismissed to the extent that defendant raises that challenge
(People v Carabello, 309 AD2d 1227, 1228; see generally People v
Reitano, 68 AD3d 954, lv denied 14 NY3d 708; People v Teagle, 64 AD3d
549; People v Rendace, 58 AD3d 821; People v Pride, 37 AD3d 957, lv
denied 8 NY3d 812). We affirm the order insofar as it determines that
defendant is a risk level one.




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