SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1065 

KA 10-02348 

PRESENT: SCUDDER, P.J., SMITH, CENTRA, GREEN, AND GORSKI, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

CHARLES CARBONE, DEFENDANT-APPELLANT. 

 

DANIEL M. GRIEBEL, BUFFALO, FOR DEFENDANT-APPELLANT. 

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHELLE L.

CIANCIOSA OF COUNSEL), FOR RESPONDENT. 

 

Appeal from an order of the Supreme Court, Erie County (John L.

Michalski, A.J.), entered August 10, 2010. 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: Defendant appeals from an order determining that he

is a level three risk pursuant to the Sex Offender Registration Act

(Correction Law § 168 et seq.), an upward departure from the

presumptive level two risk pursuant to the risk assessment instrument

(RAI) score. Contrary to defendant’s contention, Supreme Court did

not abuse its discretion in refusing to grant a third adjournment to

enable his attorney to obtain additional records from his inmate file. 

Even assuming, arguendo, that additional records would have supported

defendant’s contention that he should not have been assessed points

for category 12 on the RAI for refusal to participate in treatment, we

conclude that his score under the RAI would nevertheless have remained

at a level two (see generally People v Sherard, 73 AD3d 537, lv denied

15 NY3d 707). Furthermore, the request for the third adjournment was

made on the day before defendant was discharged from prison, and the

court was obligated to determine his risk level prior to defendant’s

parole (see § 168-n [1]).

Contrary to defendant’s further contention, the court’s

determinations that defendant engaged in a continuous course of

conduct and that the victim was less than 10 years of age at the time

of the abuse are supported by the requisite clear and convincing

evidence (see Correction Law § 168-n [3]). That information was

contained in the presentence report, which states that the 12-year-old

victim reported during a child protective investigation that he was

forced to perform oral sex on defendant numerous times and that the
-2- 1065 

KA 10-02348 

abuse had occurred over a period of six years. Where, as here, the

information in the presentence report is “produced based on

information supplied by the victim . . . or some other knowledgeable

witness under circumstances bearing indicia of reliability,” the

reliable hearsay requirement is met (People v Mingo, 12 NY3d 563,

575). The court’s determination that defendant refused sex offender

treatment also is supported by clear and convincing evidence (see §

168-n [3]), despite the evidence that defendant made complaints to

various officials that he was “harassed” by the treatment counselor

(cf. People v Kearns, 68 AD3d 1713, 1714). Indeed, defendant signed a

document stating that he refused to return to sex offender counseling

at any facility “due to legali[ties].” 

Finally, although we agree with defendant that the court erred in

relying in part upon the duration of the abuse and the age of the

victim in departing from the presumptive level two risk, we

nevertheless conclude that the court properly determined that the

upward departure was warranted. Defendant’s perception that oral

sodomy between an adult and child was “normal” based upon his own

experience is not otherwise taken into consideration by the RAI, and

that perception compels the conclusion that defendant poses an

increased risk to public safety (see People v Hueber, 81 AD3d 1466, lv

denied 17 NY3d 701; People v May, 77 AD3d 1388).

Entered: November 10, 2011 Patricia L. Morgan

Clerk of the Court