Opinion
2021–00914
04-27-2022
PEOPLE of State of New York, respondent, v. Israel REYES, appellant.
Laurette D. Mulry, Riverhead, N.Y. (Lisa Marcoccia of counsel), for appellant. Raymond A. Tierney, District Attorney, Riverhead, N.Y. (Glenn Green of counsel), for respondent.
Laurette D. Mulry, Riverhead, N.Y. (Lisa Marcoccia of counsel), for appellant.
Raymond A. Tierney, District Attorney, Riverhead, N.Y. (Glenn Green of counsel), for respondent.
BETSY BARROS, J.P., CHERYL E. CHAMBERS, JOSEPH J. MALTESE, PAUL WOOTEN, JJ.
DECISION & ORDER Appeal by the defendant from an order of the Supreme Court, Suffolk County (Chris Ann Kelly, J.), dated December 8, 2020, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6–C.
ORDERED that the order is affirmed, without costs or disbursements.
In this proceeding pursuant to the Sex Offender Registration Act (see Correction Law art 6–C [hereinafter SORA]), the Supreme Court, after a hearing, designated the defendant a level two sex offender.
In establishing a defendant's risk level pursuant to SORA, the People bear the burden of establishing facts supporting the determination sought by clear and convincing evidence (see id. § 168–n[3]; People v. Guadeloupe, 173 A.D.3d 910, 911, 100 N.Y.S.3d 384 ; People v. Holmes, 166 A.D.3d 821, 822, 85 N.Y.S.3d 792 ; People v. LeGrand, 152 A.D.3d 722, 722, 55 N.Y.S.3d 905 ). "In assessing points, evidence may be derived from the defendant's admissions, the victim's statements, evaluative reports completed by the supervising probation officer, parole officer, or corrections counselor, case summaries prepared by the Board of Examiners of Sex Offenders ... or any other reliable source, including reliable hearsay" ( People v. Crandall, 90 A.D.3d 628, 629, 934 N.Y.S.2d 446 ; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5 [2006] [hereinafter Guidelines]; People v. Diaz, 34 N.Y.3d 1179, 123 N.Y.S.3d 64, 145 N.E.3d 947 ; People v. Mingo, 12 N.Y.3d 563, 883 N.Y.S.2d 154, 910 N.E.2d 983 ).
Here, contrary to the defendant's contention, the People established by clear and convincing evidence that the assessment of 30 points under risk factor 1, for being armed with a dangerous instrument, was warranted. The victim's sworn grand jury testimony that the defendant was armed with a knife during one of the incidents of sexual assault was reliable within the meaning of SORA (see People v. Mingo, 12 N.Y.3d at 573, 883 N.Y.S.2d 154, 910 N.E.2d 983 ; People v. Maldonado, 147 A.D.3d 798, 799, 45 N.Y.S.3d 587 ; People v. Davis, 130 A.D.3d 598, 600, 12 N.Y.S.3d 280 ; People v. Snay, 122 A.D.3d 1012, 1013, 995 N.Y.S.2d 422 ; People v. Crandall, 90 A.D.3d at 629, 934 N.Y.S.2d 446 ). Contrary to the defendant's contention, the Supreme Court was not limited solely to consideration of the crimes of which the defendant was convicted in assessing points (see Guidelines at 5; People v. Sincerbeaux, 27 N.Y.3d 683, 688–689, 37 N.Y.S.3d 39, 57 N.E.3d 1076 ; People v. Burrowes, 177 A.D.3d 1005, 113 N.Y.S.3d 264 ; People v. McClendon, 175 A.D.3d 1329, 1330, 108 N.Y.S.3d 36 ; People v. Fowara, 128 A.D.3d 932, 933, 9 N.Y.S.3d 390 ; People v. Snay, 122 A.D.3d at 1013, 995 N.Y.S.2d 422 ; People v. Kost, 82 A.D.3d 729, 917 N.Y.S.2d 916 ).
Accordingly, the Supreme Court properly designated the defendant a level two sex offender.
BARROS, J.P., CHAMBERS, MALTESE and WOOTEN, JJ., concur.