Opinion
2017–10491
09-29-2021
PEOPLE of State of New York, respondent, v. Eric JONES, appellant.
Patricia Pazner, New York, N.Y. (Samuel Barr of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy, and Nicole Leibow of counsel), for respondent.
Patricia Pazner, New York, N.Y. (Samuel Barr of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy, and Nicole Leibow of counsel), for respondent.
WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, ROBERT J. MILLER, COLLEEN D. DUFFY, PAUL WOOTEN, JJ.
DECISION & ORDER Appeal by the defendant from an order of the Supreme Court, Kings County (Michael J. Brennan, J.), dated July 19, 2017, which, after a hearing, designated him a level three 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 (Correction Law art 6–C; hereinafter SORA), the Supreme Court assessed the defendant 140 points, within the range for a presumptive designation as a level three sex offender. The defendant did not seek a downward departure from his presumptive risk level. The Supreme Court adjudicated the defendant a level three sex offender. The defendant appeals.
"In establishing an offender's appropriate risk level under SORA, the People ‘bear the burden of proving the facts supporting the determinations sought by clear and convincing evidence’ " ( People v. Watkins, 168 A.D.3d 1007, 1007–1008, 91 N.Y.S.3d 246, quoting Correction Law § 168–n[3] ; see People v. Lopez, 192 A.D.3d 1050, 1050–1051, 141 N.Y.S.3d 314 ). In assessing points, evidence may be derived from the defendant's admissions, the victim's statements, and any relevant materials and evidence submitted by the parties, including reliable hearsay evidence, which may come from, among other documents, evaluative reports completed by the supervising probation officer, or case summaries prepared by the Board of Examiners of Sex Offenders (see People v. Lopez, 192 A.D.3d at 1051, 141 N.Y.S.3d 314 ; SORA: Risk Assessment Guidelines and Commentary at 5 [2006] [hereinafter Guidelines]).
The defendant's contentions regarding risk factor 7 are unpreserved for appellate review (see CPL 470.05[2] ; People v. Butler, 157 A.D.3d 727, 730, 69 N.Y.S.3d 66 ) and, in any event, without merit.
However, as the defendant correctly contends, here, the People failed to meet their burden of proving, by clear and convincing evidence, that points should be assessed under risk factor 4 (see People v. Jarama, 178 A.D.3d 970, 971, 112 N.Y.S.3d 516 ). Nevertheless, even with the subtraction of the 20 points erroneously assessed under risk factor 4, the defendant's point total was in the range for a presumptive level three designation. The People met their burden as to those points (see People v. Lopez, 192 A.D.3d at 1050–1051, 141 N.Y.S.3d 314 ; People v. Arrahman, 144 A.D.3d 1009, 1009–1010, 43 N.Y.S.3d 60 ).
The defendant's remaining contention is without merit (see People v. Butler, 157 A.D.3d at 730–731, 69 N.Y.S.3d 66 ; People v. Madera, 118 A.D.3d 726, 726–727, 986 N.Y.S.2d 353 ). Accordingly, the Supreme Court properly designated the defendant a level three sex offender.
MASTRO, J.P., CHAMBERS, MILLER, DUFFY and WOOTEN, JJ., concur.