Opinion
2014-05-28
PEOPLE of State of New York, respondent, v. Adam PATRONICK, appellant.
Lynn W.L. Fahey, New York, N.Y. (Jenin Younes of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Christine DiSalvo, and Jennifer Hagan of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Jenin Younes of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Christine DiSalvo, and Jennifer Hagan of counsel), for respondent.
REINALDO E. RIVERA, J.P., PLUMMER E. LOTT, ROBERT J. MILLER, and COLLEEN D. DUFFY, JJ.
Appeal by the defendant from an order of the Supreme Court, Queens County (Koenderman, J.), dated December 10, 2012, 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 establishing a defendant's risk level pursuant to the Sex Offender Registration Act (hereinafter SORA) ( see Correction Law art 6–C), the People bear the burden of establishing, by clear and convincing evidence, the facts supporting the determinations sought ( seeCorrection Law § 168–n[3]; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5 [2006]; People v. Pettigrew, 14 N.Y.3d 406, 408, 901 N.Y.S.2d 569, 927 N.E.2d 1053;People v. Wyatt, 89 A.D.3d 112, 117–118, 931 N.Y.S.2d 85). “ ‘In assessing points, evidence may be derived from ... 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. Barbour, 111 A.D.3d 813, 813–814, 975 N.Y.S.2d 164, quoting People v. Crandall, 90 A.D.3d 628, 629, 934 N.Y.S.2d 446;seeCorrection Law § 168–n[3]; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5 [2006]; People v. Mingo, 12 N.Y.3d 563, 571–572, 883 N.Y.S.2d 154, 910 N.E.2d 983;People v. McPherson, 114 A.D.3d 653, 979 N.Y.S.2d 658).
Here, the case summary and the sworn felony complaint constituted “reliable hearsay” (Correction Law § 168–n[3]; see People v. Mingo, 12 N.Y.3d at 576, 883 N.Y.S.2d 154, 910 N.E.2d 983;People v. Dash, 111 A.D.3d 907, 908, 977 N.Y.S.2d 39) and provided clear and convincing evidence to warrant the assessment of 20 points under risk factor four, for engaging in a continuing course of sexual misconduct against the victim ( see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 10 [2006] ). This provided sufficient points for the defendant to be designated a level two sex offender.
Contrary to the defendant's contention, his due process rights were not violated at the SORA hearing ( see People v. Harris, 100 A.D.3d 727, 728, 953 N.Y.S.2d 671).