SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

796 

KA 13-01805 

PRESENT: SMITH, J.P., CENTRA, CARNI, VALENTINO, AND WHALEN, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

THOMAS W. JEWELL, DEFENDANT-APPELLANT. 

 

CHARLES A. MARANGOLA, MORAVIA, FOR DEFENDANT-APPELLANT. 

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CARL J. ROSENKRANZ OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from an order of the Cayuga County Court (Mark H.

Fandrich, A.J.), entered June 14, 2013. The order, among other

things, 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

([SORA] Correction Law § 168 et seq.). As a preliminary matter, we

note that defendant did not preserve for our review his contention

that County Court improperly considered the grand jury testimony of

the victim and the presentence report because he failed to object at

the hearing to the court’s consideration of those materials, despite

the court’s explicit reliance thereon. In any event, it is well

settled that a court may consider reliable hearsay, including grand

jury testimony and presentence reports (see People v Mingo, 12 NY3d

563, 572-573; People v Perrah, 99 AD3d 1257, 1257-1258, lv denied 20

NY3d 854). Moreover, no foundation testimony or evidence is required

with respect to a presentence report or grand jury minutes (see Mingo,

12 NY3d at 573). We further conclude that the victim’s grand jury

testimony was the type of “victim[] statement” that the court is

required to consider in making its determination whether offered by

either of the parties or not (Correction Law § 168-n [3]; People v

Law, 94 AD3d 1561, 1563, lv denied 19 NY3d 809). We also conclude

that, inasmuch as the court presided over defendant’s criminal

proceeding, the presentence report and the grand jury minutes were

part of the court’s official file, and the court “was empowered to

contemplate facts” elicited during that previous proceeding (People v

Fredenberg, 27 AD3d 970, 970; see § 168-n [3]).

We reject defendant’s contention that the court failed to make
-2- 796 

KA 13-01805 

adequate written findings of fact supporting its determination that

defendant is a level three risk. Here, “the court’s ‘oral findings

are supported by the record and sufficiently detailed to permit

intelligent review; thus, remittal is not required despite defendant’s

accurate assertion regarding the court’s failure to render a[ written]

order setting forth the findings of fact . . . upon which its

determination is based’ ” (People v Gosek, 98 AD3d 1309, 1310).

Contrary to defendant’s contention, the court did not err in

assessing 25 points under risk factor 2 in the risk assessment

instrument, for sexual contact with the victim, despite the fact that

defendant pleaded guilty to two counts of attempted criminal sexual

act in the second degree (Penal Law §§ 110.00, 130.45). “In assessing

defendant’s risk level . . . the court is ‘not limited to the crime of

conviction’ ” (People v Hubel, 70 AD3d 1492, 1493; see Sex Offender

Registration Act: Risk Assessment Guidelines and Commentary, at 5

[2006]). Here, the People met their burden of establishing by clear

and convincing evidence, including reliable hearsay evidence such as

the victim’s grand jury testimony, the case summary, and the

presentence investigation report, that defendant engaged in oral

sexual conduct with the victim (see Hubel, 70 AD3d at 1493; see

generally Mingo, 12 NY3d at 572-573). We also reject defendant’s

contention that the court erred in assessing 20 points under risk

factor 4, for continuing course of sexual misconduct. Again, contrary

to defendant’s contention, “[t]he court is ‘not limited to the crime

of conviction’ in assessing points for that risk factor” (People v

Slotman, 112 AD3d 1332, 1333; see Risk Assessment Guidelines and

Commentary, at 5). The reliable hearsay evidence presented by the

People established that defendant engaged in two or more acts of

sexual contact with the victim, at least one of which was an act of

oral sexual contact, which were separated in time by at least 24 hours

(see Risk Assessment Guidelines and Commentary, at 10). Contrary to

defendant’s further contention, the court properly assessed 10 points

under risk factor 12, for failing to genuinely accept responsibility. 

The People established that defendant blamed the victim, “ ‘minimized

the underlying sexual offense[,] and . . . denied that he performed

the criminal sexual act [that] formed the basis for the conviction’

during an interview with the Probation Department” (People v Wilson,

117 AD3d 1557, 1557; see People v Baker, 57 AD3d 1472, 1473, lv denied

12 NY3d 706). We thus conclude that “the People established by clear

and convincing evidence that defendant ‘fail[ed] to genuinely accept

responsibility for his conduct as required by the risk assessment

guidelines’ ” (Wilson, 117 AD3d at 1557).

Defendant’s constitutional challenge to the court’s assessment of

15 points under risk factor 14, for being released without official

supervision, is not properly before us because there is no indication

in the record that the Attorney General was given the requisite notice

(see Executive Law § 71). In any event, it is well established that

“a SORA risk-level determination is not part of a defendant’s sentence

. . . Rather, it is a collateral consequence of a conviction for a sex

offense designed not to punish, but . . . to protect the public”

(People v Windham, 10 NY3d 801, 802). 
-3- 796 

KA 13-01805 

Finally, contrary to defendant’s contention, the remoteness of

his prior felony conviction is adequately taken into account by the

risk assessment instrument and therefore is not, as a matter of law, a

mitigating factor to be considered by the court in departing from the

presumptive risk level (see People v Wyatt, 89 AD3d 112, 130-131, lv

denied 18 NY3d 803). 

Entered: July 11, 2014 Frances E. Cafarell

Clerk of the Court