State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 13, 2014 516433 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

THOMAS SNAY JR.,

Appellant.

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Calendar Date: October 10, 2014

Before: McCarthy, J.P., Egan Jr., Lynch, Devine and Clark, JJ.

__________

Eugene P. Grimmick, Troy, for appellant.

Arthur F. Glass Jr., Acting District Attorney, Troy (Kelly

L. Egan of counsel), for respondent.

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Lynch, J.

Appeal from an order of the County Court of Rensselaer

County (Ceresia, J.), entered September 6, 2012, which classified

defendant as a risk level III sex offender and a sexually violent

offender pursuant to the Sex Offender Registration Act.

In 2011, the then-41-year-old defendant pleaded guilty to

sexual abuse in the first degree in satisfaction of 16 additional

counts, including rape in the first and second degrees. The

charges arose out of defendant allegedly subjecting a 14-year-old

girl to forcible sexual intercourse in August 2009 and forcible

sexual contact in December 2009, as well as forcibly touching the

breasts of another 14-year-old girl in 2010, forcibly engaging in

sexual contact with a physically helpless, 15-year-old girl in

2009, and subjecting an eight-year-old to sexual contact three
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times in December 2009. Defendant was sentenced to three years

in prison, to be followed by 10 years of postrelease supervision. 

In anticipation of defendant's release from prison, the Board of

Examiners of Sex Offenders completed a risk assessment instrument

that presumptively classified defendant as a risk level III sex

offender and sexually violent offender (150 points) in accordance

with the Sex Offender Registration Act (see Correction Law art 6-

C [hereinafter SORA]). Following a hearing, County Court adopted

the Board's risk factor scoring, denied the People's request that

defendant be assessed an additional 10 points for failure to

accept responsibility, and classified defendant as a risk level

III sex offender and sexually violent offender. Defendant now

appeals.

We affirm. Defendant challenges County Court's assessment

of 85 points relating to victims other than the one victim of his

crime of conviction. Specifically, he challenges the imposition

of 10 points for use of forcible compulsion (risk factor 1)

against a victim who was not the subject of his adjudicated

crime, 15 additional points for engaging in sexual intercourse

with another victim (risk factor 2), 30 points for three or more

victims (risk factor 3), 20 points for a continuing course of

sexual misconduct (risk factor 4), and 10 additional points based

upon the age of another victim (risk factor 5). Contrary to

defendant's assertion, "County Court was not limited to the crime

to which [he] pleaded, but could, instead, consider reliable

hearsay evidence in the record" (People v Clavette, 96 AD3d 1178,

1180 [2012], lv denied 20 NY3d 851 [2012] [internal quotation

marks and citations omitted]; see People v Ackley, 95 AD3d 1463,

1463-1464 [2012]), including the case summary, presentence

investigation report and victim statements (see People v Mingo,

12 NY3d 563, 571-574 [2009]; People v Luebbert, 73 AD3d 1399,

1399-1400 [2010]). In our view, that proof herein is in no way

inadequate, constitutes clear and convincing evidence that

defendant victimized at least three children, and supports County

Court's assessment of the 85 points that defendant challenges

(see People v Luebbert, 73 AD3d at 1399-1400; People v LaRock, 45

AD3d 1121, 1122-1123 [2007]; People v Whaley, 38 AD3d 1106, 1107

[2007]). Finally, defendant's admissions of regular drug use in

the presentence investigation report belie his contention that

County Court erred in assessing points under risk factor 11 for a
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history of drug or alcohol abuse (see People v Filkins, 107 AD3d

1069, 1069 [2013]; People v Whaley, 38 AD3d at 1107).

Defendant's remaining contentions, to the extent not

addressed herein, have been considered and found to be lacking in

merit.

McCarthy, J.P., Egan Jr., Devine and Clark, JJ., concur.

ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court