People v. Forshey

181 N.Y.S.3d 488 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Steven C. FORSHEY, Defendant-appellant.

114

KA 22-00265

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: February 3, 2023

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALLISON V. MCMAHON OF COUNSEL), FOR DEFENDANT-APPELLANT.

JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (ELIZABETH K. OGDEN OF COUNSEL), FOR RESPONDENT.

PRESENT: SMITH, J.P., PERADOTTO, CURRAN, MONTOUR, AND OGDEN, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: On appeal from a December 2020 order determining that he is a level three risk pursuant to the Sex Offender Registration Act ([SORA] Correction Law § 168 et seq. ), defendant contends that the 2020 SORA hearing was duplicative of a SORA hearing held in 2019 which resulted in a 2019 order determining that he is a level three risk ( People v. Forshey , 201 A.D.3d 1352, 158 N.Y.S.3d 673 [4th Dept. 2022], lv denied 38 N.Y.3d 907, 2022 WL 1573418 [2022] ), and this Court should therefore vacate the 2020 determination as a matter of public policy. Defendant failed to raise that contention at the 2020 SORA hearing and it is therefore not preserved for our review (see People v. Sanchez , 186 A.D.3d 880, 881, 130 N.Y.S.3d 43 [2d Dept. 2020] ). In any event, his contention is without merit. In 1994, defendant was convicted in Florida of a felony sex offense and, in 2000, he was convicted in New York of rape in the first degree. The Board of Examiners of Sex Offenders prepared two risk assessment instruments (RAIs) based on the two separate convictions, with the RAI prepared with respect to the New York conviction giving rise to the 2019 order, and the RAI prepared with respect to the Florida conviction giving rise to the 2020 order. Defendant's reliance on People v. Cook , 29 N.Y.3d 114, 53 N.Y.S.3d 234, 75 N.E.3d 651 (2017) is misplaced. In that case, the Court of Appeals held that, where "a single set of ‘[c]urrent offenses’ " forms the basis of a single RAI, only one SORA determination is permitted ( id. at 116, 53 N.Y.S.3d 234, 75 N.E.3d 651 ; see id. at 119, 53 N.Y.S.3d 234, 75 N.E.3d 651 ). Here, defendant's two different convictions do not constitute the "current offenses" under a single RAI. Thus, it is permissible for there to be two different SORA hearings and two different risk level determinations (see Sanchez , 186 A.D.3d at 881-882, 130 N.Y.S.3d 43 ; People v. Fuentes , 177 A.D.3d 788, 789, 110 N.Y.S.3d 306 [2d Dept. 2019], lv denied 35 N.Y.3d 901, 2020 WL 1521516 [2020] ; People v. Hirji , 170 A.D.3d 412, 412-413, 93 N.Y.S.3d 572 [1st Dept. 2019], lv denied 33 N.Y.3d 907, 2019 WL 2440350 [2019] ). The 2020 SORA hearing was "based on a separate...