17 A.D.3d 1045
N.Y. App. Div.
2005

The People of the State of New York, Respondent, v John K. Smith, Appellant.

Appellate Division of the Supreme Court of New York, Fourth Department

793 NYS2d 782

Appeal from an order of the Monroe County Court (Frank P. Geraci, Jr., J.), entered September 24, 2003. 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 be and the same hereby is unanimously affirmed without costs.

Memorandum: Defendant appeals from an order determining that he is a level three risk under the Sex Offender Registration Act (Correction Law § 168 et seq.). Defendant contends for the first time on appeal that County Court erred in basing its determination on unreliable hearsay and that he was not given notice of the prosecutor‘s intent to seek a classification different from that recommended by the Board of Examiners of Sex Offenders. Thus, those contentions are not preserved for our review (see Oram v Capone, 206 AD2d 839 [1994]). Contrary to defendant‘s further contention, “the court‘s determination of defendant‘s risk level is based on clear and convincing evidence, and we will not disturb it” (People v Warwick, 5 AD3d 1050, 1050 [2004], lv denied 3 NY3d 605 [2004]; see People v Peterson, 8 AD3d 1124, 1125 [2004], lv denied 3 NY3d 607 [2004]). Present—Pigott, Jr., P.J., Hurlbutt, Martoche, Smith and Pine, JJ.