HIRAM, JOHANNES, PEOPLE v ( 2016 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
689
KA 15-00418
PRESENT: CENTRA, J.P., LINDLEY, CURRAN, TROUTMAN, AND SCUDDER, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
JOHANNES HIRAM, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF
COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (MATTHEW
B. POWERS OF COUNSEL), FOR RESPONDENT.
Appeal from an order of the Supreme Court, Erie County (John L.
Michalski, A.J.), entered January 21, 2015. The order determined that
defendant is a level two 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 two risk under the Sex Offender Registration Act
(Correction Law § 168 et seq.). Contrary to defendant’s contention,
Supreme Court properly assessed 15 points under risk factor 9 for his
nonviolent felony criminal history. That assessment is supported by
the reliable hearsay contained in the case summary (see People v
Thompson, 66 AD3d 1455, 1456, lv denied 13 NY3d 714; People v Ramos,
41 AD3d 1250, 1250, lv denied 9 NY3d 809; see generally People v
Mingo, 12 NY3d 563, 573), and defendant’s criminal history report (see
People v Palmer, 68 AD3d 1364, 1366; People v Mann, 52 AD3d 884, 886),
which establish that defendant committed a felony in the State of
Texas. “Although given an opportunity to discover and present
evidence on the matter . . . defendant adduced nothing in opposition
to those materials” (People v Wroten, 286 AD2d 189, 199, lv denied 97
NY2d 610).
We further conclude that the court properly assessed 10 points
under risk factor 12 based on defendant’s failure to accept
responsibility. Although defendant pleaded guilty to attempted sexual
abuse in the first degree (see Penal Law §§ 110.00, 130.65 [3]), and
stated that he was sorry and “never, never wants this to happen
again[,]” he denied that he touched the 10-year-old victim’s vagina
and also denied that his actions were motivated by sexual desire.
Defendant’s denials, however, are in direct contradiction to his
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KA 15-00418
guilty plea of attempted sexual abuse in the first degree (see
§§ 130.00 [3]; 130.65 [3]). Defendant’s “contradictory statements,
considered together, do not reflect a ‘genuine acceptance of
responsibility’ as required by the risk assessment guidelines
developed by the Board [of Examiners of Sex Offenders]” (People v
Noriega, 26 AD3d 767, 767, lv denied 6 NY3d 713 [internal quotation
marks omitted]). Finally, defendant’s contention that the People
failed to present clear and convincing evidence that he in fact
touched the victim’s vagina is raised for the first time on appeal and
is thus not preserved for our review (see People v Smith, 17 AD3d
1045, 1045, lv denied 5 NY3d 705).
Entered: September 30, 2016 Frances E. Cafarell
Clerk of the Court