Two cases are before the court for resolution.
The first case is an appeal by the defendant, by permission, from an order of the County Court, Nassau County entered 31 January 2003, which denied, without a hearing, his motion pursuant to CPL 440.10 to vacate a judgment of conviction of the same court rendered 10 April 2000, convicting him of rape in the first degree, sodomy in the first degree (two counts), and attempted sodomy in the first degree, upon his plea of guilty, and imposing sentence.
The court affirms the order.
Contrary to the defendant’s contention, the County Court properly denied, without a hearing, those branches of his motion which were to vacate his judgment of conviction on the ground that the People did not disclose various statements made by witnesses as ruled in People v Rosario and Brady v Maryland.
It was held in People v Land, People v Knickerbocker and People v Thompson that by pleading guilty, the defendant forfeited his right to seek review of any alleged Rosario or Brady violation. The court rejects the defendant’s contention that, since he did not waive his right to appeal, the Brady claim is subject to review akin to People v Mack and People v Land. The court also rejects the defendant’s contention that he did not forfeit his Brady claim because he entered into a Serrano/Alford plea and thus did not admit guilt as in People v Green and People v Thompson.
The County Court properly rejected the defendant’s claims relating to alleged newly-discovered evidence. CPL 440.10 (1) (g) is limited, by its very terms, to evidence discovered since the entry of a judgment based upon a verdict of guilty after trial. The defendant pleaded guilty, so the statute does not apply here like in the case of People v Sides.
The second case is an appeal by the defendant from an order of the County Court, Nassau County dated 3 February 2003, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.
The criminal court affirms the judgment, without costs or disbursements.
The defendant’s contention based on People v Burgess and People v Cureton is that his designation as a level three sex offender violated his right to due process because the prosecution failed to offer any evidence at the determination hearing is unpreserved for appellate review.
On the other hand, the prosecution presented clear and convincing evidence to support the defendant’s classification as a level three offender, in the form of documentary evidence consisting of the presentence report, and the case summary and risk assessment instrument prepared by the Board of Examiners of Sex Offenders based on People v Grimmet, People v Overman, People v Burgess and People v Moore.
Contrary to the defendant’s contention, the court properly assessed him points for his history of alcohol and drug abuse based upon the admissions contained in the presentence report as held in People v Williams, People v Perser, People v Davis and People v Masters.
Furthermore, it was not error to assess the defendant points for his commission of a prior sex offense which resulted in his adjudication as a youthful offender. “The Risk Assessment Guidelines developed by the Board expressly provide that youthful offender adjudications are to be treated as `crimes’ for purposes of assessing the defendant’s likelihood of re-offending and danger to public safety as held in People v Moore, People v Masters and People v Peterson. The court also properly assessed the defendant points for both his use of violence during the rape and his sexual contact with the victim, which are separate risk factors, and for his continued refusal to accept responsibility for his offense.
Nassau County Criminal Lawyers like Nassau County Rape Lawyers or Nassau County Sodomy Lawyers at Stephen Bilkis & Associates well represent clients who are faced with the same legal dilemma like the cases mentioned above. We make sure you are well protected and we guarantee you get a fair and honest trial.