Opinion
2013-11-27
PEOPLE of State of New York, respondent, v. Samuel DASH, appellant.
Thomas J. Butler, Melville, N.Y., for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Tammy J. Smiley and Jacqueline Rosenblum of counsel), for respondent.
Thomas J. Butler, Melville, N.Y., for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Tammy J. Smiley and Jacqueline Rosenblum of counsel), for respondent.
WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.
Appeal by the defendant, as limited by his brief, from so much of an order of the County Court, Nassau County (O'Brien, J.), dated January 31, 2012, as, after a hearing to redetermine his sex offender risk level pursuant to the stipulation of settlement in Doe v. Pataki, 3 F.Supp.2d 456 [S.D.N.Y.1998], designated him a level three sex offender pursuant to Correction Law article 6–C.
ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.
In 1983, the defendant was convicted, upon a jury verdict, of rape in the first degree, sexual abuse in the first degree, and petit larceny ( see People v. Dash, 126 A.D.2d 737, 511 N.Y.S.2d 323). In evaluating the defendant for registration as a sex offender pursuant to the Sex Offender Registration Act ( see Correction Law article 6–C; hereinafter SORA), the County Court assessed the defendant a total of 115 points, which presumptively placed him in the level three sex offender category. As relevant to the instant appeal, at the SORA hearing, the County Court assessed the defendant 5 points under risk factor 9 and 10 points under risk factor 10 based upon the defendant's prior juvenile delinquency adjudications. Additionally, the County Court assessed the defendant 10 points under risk factor 1, rejecting the prosecutor's assertion that the defendant should be assessed 30 points under that category based on evidence that he was armed with a dangerous instrument during the commission of the rape. We affirm the order insofar as appealed from, but for reasons other than those set forth by the hearing court ( see People v. Neuer, 86 A.D.3d 926, 926 N.Y.S.2d 793; People v. Larkin, 66 A.D.3d 592, 886 N.Y.S.2d 804; People v. Hoffman, 62 A.D.3d 976, 880 N.Y.S.2d 122; People v. Aldrich, 56 A.D.3d 1228, 867 N.Y.S.2d 610; see generally Parochial Bus Sys. v. Board of Educ. of City of N.Y., 60 N.Y.2d 539, 470 N.Y.S.2d 564, 458 N.E.2d 1241).
As the People correctly concede, in light of this Court's holding in People v. Campbell, 98 A.D.3d 5, 946 N.Y.S.2d 587, the defendant's prior juvenile delinquency adjudications should not have been considered in determining his appropriate risk level under SORA ( see People v. Felice, 100 A.D.3d 609, 953 N.Y.S.2d 295). Accordingly, the defendant should not have been assessed 5 points under risk factor 9 and 10 points under risk factor 10.
However, we agree with the People that the defendant should have been assessed 30 points, rather than 10, under risk factor 1 based on evidence that he was armed with a dangerous instrument during the commission of the rape ( see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 7–8 [2006]; People v. Pettigrew, 14 N.Y.3d 406, 409, 901 N.Y.S.2d 569, 927 N.E.2d 1053; People v. Williams, 90 A.D.3d 880, 934 N.Y.S.2d 817; People v. Kost, 82 A.D.3d 729, 917 N.Y.S.2d 916). In establishing a defendant's risk level assessment pursuant to SORA, “the People bear the burden of establishing, by clear and convincing evidence, the facts supporting the determination sought” (People v. Lacewell, 103 A.D.3d 784, 785, 962 N.Y.S.2d 193 [internal quotation marks omitted]; seeCorrection Law § 168–n[3]; People v. Finizio, 100 A.D.3d 977, 978, 954 N.Y.S.2d 636; People v. Crandall, 90 A.D.3d 628, 629, 934 N.Y.S.2d 446; People v. Hewitt, 73 A.D.3d 880, 900 N.Y.S.2d 438; People v. Chambers, 66 A.D.3d 748, 748, 887 N.Y.S.2d 220). “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. Lacewell, 103 A.D.3d at 785, 962 N.Y.S.2d 193 [internal quotation marks omitted]; People v. Finizio, 100 A.D.3d at 978, 954 N.Y.S.2d 636 [internal quotation marks omitted]; People v. Crandall, 90 A.D.3d at 629, 934 N.Y.S.2d 446; see People v. Mabee, 69 A.D.3d 820, 820, 893 N.Y.S.2d 585; see also People v. Mingo, 12 N.Y.3d 563, 883 N.Y.S.2d 154, 910 N.E.2d 983). Here, as the People correctly point out, the presentence report prepared by the Department of Probation, the felony complaint sworn to and signed by the arresting officer, and the arrest report constituted “reliable hearsay” (Correction Law § 168–n[3] ) and provided clear and convincing evidence that the defendant was armed with a dangerous instrument during the commission of the rape ( see People v. Mingo, 12 N.Y.3d at 572, 883 N.Y.S.2d 154, 910 N.E.2d 983; People v. Williams, 95 A.D.3d 1093, 1093–1094, 943 N.Y.S.2d 783; People v. Burch, 90 A.D.3d 1429, 1431, 936 N.Y.S.2d 351; People v. Williams, 90 A.D.3d at 881, 934 N.Y.S.2d 817; People v. Conway, 47 A.D.3d 492, 493, 850 N.Y.S.2d 67; People v. Hines, 24 A.D.3d 524, 525, 807 N.Y.S.2d 608). Contrary to the defendant's contention, the fact that certain statements contained in these documents constituted “double hearsay” did not necessarily render them unreliable for purposes of a SORA hearing ( see People v. Hines, 24 A.D.3d at 525, 807 N.Y.S.2d 608). Moreover, even though certain proof may not have been admissible at the criminal trial, the Legislature did not limit the types of materials admissible in a SORA proceeding to what would be admissible at a civil or criminal trial ( see People v. Mingo, 12 N.Y.3d at 572, 883 N.Y.S.2d 154, 910 N.E.2d 983; People v. Wyatt, 89 A.D.3d 112, 117, 931 N.Y.S.2d 85).
Taking into account the above errors, the County Court should have assessed the defendant a total of 120 points, rather than 115. As this total score still makes him a presumptive level three sex offender, the order must be affirmed insofar as appealed from.