People v Ensell
2008 NY Slip Op 02402 [49 AD3d 1301]
March 14, 2008
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, May 14, 2008


The People of the State of New York, Respondent, v Paul O. Ensell, Appellant.

[*1] Bonita J. Stubblefield, Piffard, for defendant-appellant.

Appeal from an order of the Allegany County Court (Thomas P. Brown, J.), entered January 8, 2007. 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 ([SORA] Correction Law § 168 et seq.). Contrary to the contention of defendant, County Court's determination of his risk level is supported by the requisite clear and convincing evidence (see § 168-n [3]; People v Vacanti, 26 AD3d 732, 733 [2006], lv denied 6 NY3d 714 [2006]; People v Hamelinck, 23 AD3d 1060 [2005]). Contrary to defendant's further contention, the case summary constitutes reliable hearsay, and the court properly considered it in determining defendant's risk level (see People v Woods, 41 AD3d 1299 [2007], lv denied 9 NY3d 809 [2007]; People v Vaughn, 26 AD3d 776 [2006]). Finally, we conclude that defendant waived his right to be present at the SORA hearing inasmuch as the record establishes that he signed a written waiver of that right, in which he "was advised of the hearing date, of the right to be present at the hearing, and that the hearing would be conducted in his . . . absence" (People v Porter, 37 AD3d 797 [2007]; see People v Brooks, 308 AD2d 99, 105-106 [2003], lv denied 1 NY3d 502 [2003]). We have considered defendant's remaining contention and conclude that it is without merit. Present—Martoche, J.P., Smith, Peradotto, Pine and Gorski, JJ.