Appeal from a judgment of the City Court of Poughkeepsie, Dutchess County (Ronald J. McGaw, J.), rendered October 12, 2004. The judgment convicted defendant, upon his plea of guilty, of sexual misconduct.

Judgment of conviction affirmed.

Defendant was initially charged by felony complaint with rape in the first degree, a class B felony. In accordance with section 180.50 of the Criminal Procedure Law, the felony complaint was converted to an information by reducing the charge to sexual misconduct (Penal Law § 130.20 [1], [2]) and incorporating the supporting deposition of
the victim and defendant's statements therewith. Defendant subsequently moved to dismiss the information as being legally insufficient. The motion was denied. Thereafter defendant entered a plea of guilty to sexual misconduct (Penal Law § 130.20 [1]) and was sentenced to six months' incarceration. Subsequent to the imposition of the sentence, defendant was classified as a level two sex offender.

On this appeal, defendant challenges the legal sufficiency of the information and his level two classification.

Section 100.40 (1) of the Criminal Procedure Law states that an information is sufficient on its face when it substantially conforms to the requirements of CPL 100.15, and when the [*2]factual allegations (together with any supporting depositions which may accompany it) provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the instrument and the non-hearsay allegations of the factual part of the information and/or any supporting depositions establish, if true, every element of the offense charged and defendant's commission thereof. The law does not require that the precise words or phrases which most clearly express the thought be used in an information, but only that the crime is alleged and the specifics set forth so that a defendant can prepare himself for trial, and so that he will not be tried again for the same offense (People v Zambounis, 251 NY 94 [1929]; People v Shea, 68 Misc 2d 271 [1971]). The failure to comply with this requirement is a
nonwaivable defect (People v Alejandro, 70 NY2d 133 [1987]) with the exception of the non-hearsay requirement which is deemed waived absent a pretrial motion (see People v Casey, 95 NY2d 354 [2000]) or upon a plea of guilty (People v Pittman, 100 NY2d 114, 122 [2003]).

A person is guilty of sexual misconduct in violation of section 130.20 (1) of the Penal Law when he or she engages in sexual intercourse with another person without such person's consent. A person is deemed incapable of consent when he or she is less than seventeen years old (Penal Law § 130.05 [3] [a]). In the case at bar, the detective alleged in said information that defendant, on the date, time and place set forth in the information, did forcibly have sex with the victim, a 16-year-old female. Since the factual allegations were sufficient to establish each and every element of the offense charged and defendant's commission thereof, and since defendant, by pleading guilty, waived the non-hearsay requirement (People v Pittman, 100 NY2d 114, supra), defendant's conviction should be affirmed.

On this appeal, defendant also challenges his sex offender classification. It should be noted that defendant was sentenced on October 12, 2004 to six months' incarceration. On or about December 22, 2004, defendant was classified a level two offender. Since post-judgment risk level determinations under the Sex Offender
Registration Act are not part of the criminal action or its final adjudication, they are not appealable as part of the judgment of conviction (see People v Stevens, 91 NY2d 270, 277 [1998]; see also People v Nieves, 2 NY3d 310, 314-315 [2004]).

Rudolph, P.J., Angiolillo and Tanenbaum, JJ., concur.
Decision Date: April 21, 2006