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

781
KA 12-00993
PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, WHALEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CHEYENNE J. KOONS, DEFENDANT-APPELLANT.


ROSEMARIE RICHARDS, SOUTH NEW BERLIN, FOR DEFENDANT-APPELLANT.

BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (AMANDA M. CHAFEE OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Steuben County Court (Marianne
Furfure, A.J.), entered March 12, 2012. 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 under the Sex Offender Registration Act (Correction
Law § 168 et seq.), defendant contends that he was deprived of due
process by the People’s failure to provide him with notice that they
would seek a departure from the recommendation of the Board of
Examiners of Sex Offenders. Defendant failed to preserve that
contention for our review by a timely objection before County Court
(see People v Charache, 9 NY3d 829, 830; see generally People v Neuer,
86 AD3d 926, 926, lv denied 17 NY3d 716).

     Defendant further contends that the court erred in assessing 20
points against him under risk factor 4 (duration of offense conduct
with victim) and 10 points under risk factor 10 (recency of prior
felony or sex crime). We reject those contentions. With respect to
risk factor 4, the People had the burden of proving that “defendant
engaged in two acts of sexual intercourse with the victim and that
such ‘acts [were] separated in time by at least 24 hours’ ” (People v
Wood, 60 AD3d 1350, 1351, quoting Sex Offender Registration Act: Risk
Assessment Guidelines and Commentary at 10 [2006]; see generally
Correction Law § 168-n [3]; People v Johnson, 104 AD3d 1321, 1321).
The reliable hearsay evidence presented by the People established that
defendant and one victim engaged in sexual intercourse between early
June 2009 and early August 2009 in at least two different towns.
Defendant admitted to at least eight such sexual encounters, and the
victim alleged that she and defendant may have had as many as 15
                                 -2-                           781
                                                         KA 12-00993

sexual encounters. The People therefore demonstrated by clear and
convincing evidence a continuing course of conduct and thus the
court’s assessment of 20 points under risk factor 4 was proper. With
respect to risk factor 10, we note that defendant conceded at the
hearing that 30 points were properly assessed under risk factor 9
(number and nature of prior crimes) based upon his prior youthful
offender adjudication for endangering the welfare of a child.
Inasmuch as the presentence investigation report and case summary
demonstrated that the underlying acts of and resulting guilty plea to
endangering the welfare of a child occurred within three years of the
present sexual offenses, the court correctly assessed 10 additional
points under risk factor 10 (see Sex Offender Registration Act: Risk
Assessment Guidelines and Commentary at 14; see generally People v
Rotterman, 96 AD3d 1467, 1468, lv denied 19 NY3d 813).

     Finally, we reject defendant’s contention that he was denied
effective assistance of counsel (see Rotterman, 96 AD3d at 1468;
People v Bowles, 89 AD3d 171, 181, lv denied 18 NY3d 807).




Entered:   July 19, 2013                        Frances E. Cafarell
                                                Clerk of the Court
