Opinion
2012-02-9
The PEOPLE of the State of New York, Respondent, v. Wayne L. SMITH, Appellant.
Jay L. Wilber, Public Defender, Binghamton (Regina Cahill of counsel), for appellant. Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), for respondent.
Jay L. Wilber, Public Defender, Binghamton (Regina Cahill of counsel), for appellant. Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), for respondent.
Before: ROSE, J.P., MALONE JR., STEIN, McCARTHY and EGAN JR., JJ.
STEIN, J.
Appeal from an order of the County Court of Broome County (Smith, J.), entered November 15, 2010, which classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act.
Defendant pleaded guilty to rape in the first degree and criminal sexual act in the first degree and was sentenced to five years in prison followed by five years of postrelease supervision. The Board of Examiners of Sex Offenders recommended that defendant be classified as a risk level III sex offender based upon an override factor that he had inflicted serious physical injury upon his victim. Defendant declined a hearing and County Court adjudicated defendant to be a risk level III sex offender as recommended by the Board. Defendant now appeals.
Defendant contends that his waiver of a hearing and consent to being adjudicated a risk level III sex offender was not knowing, voluntary and intelligent. Assuming that this argument is properly raised for the first time on appeal, we find that defendant's waiver and consent were adequate ( see People v. Costas, 46 A.D.3d 475, 476, 848 N.Y.S.2d 643 [2007], lv. denied 10 N.Y.3d 716, 862 N.Y.S.2d 337, 892 N.E.2d 403 [2008]; People v. Gliatta, 27 A.D.3d 441, 441, 810 N.Y.S.2d 342 [2006]; see also People v. Kyle, 64 A.D.3d 1177, 1178, 881 N.Y.S.2d 759 [2009], lv. denied 13 N.Y.3d 709, 2009 WL 3379124 [2009] ). The record reveals that County Court advised defendant of the seriousness of his decision, that he was entitled to a hearing and that he would be granted an adjournment to prepare for the hearing. Defendant stated that he understood County Court's admonitions, that he had sufficient time to discuss the matter with his attorney and that he did not wish to contest the risk level III recommendation of the Board ( see People v. Kinlock, 66 A.D.3d 980, 981, 888 N.Y.S.2d 119 [2009] ).
ORDERED that the order is affirmed, without costs.