| People v Hazen |
| 2008 NY Slip Op 00312 [47 AD3d 1091] |
| January 17, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Michael S.Hazen, Appellant. |
—[*1] Richard D. Northrup Jr., District Attorney, Delhi (John L Hubbard of counsel), forrespondent.
Malone, J. Appeal from an order of the County Court of Delaware County (Becker, J.),entered November 29, 2006, which classified defendant as a risk level three sex offenderpursuant to the Sex Offender Registration Act.
Defendant waived indictment and agreed to be prosecuted by a superior court informationcharging him with sodomy in the first degree and endangering the welfare of a child following anincident in which he had anal intercourse with a six-year-old boy. Defendant maintained that hecould not recall the incident due to his heavy intoxication and entered an Alford plea tothe charge of sexual abuse in the first degree in satisfaction of the superior court information. Hewas sentenced to 2 to 4 years in prison. Prior to his release, the Board of Examiners of SexOffenders submitted a risk level assessment instrument to County Court pursuant to the SexOffender Registration Act (see Correction Law art 6-C) with a score of 110 points,presumptively classifying defendant as risk level three sex offender, with no departurerecommended. Following a hearing, County Court adopted the Board's recommendation and thisappeal ensued.
Defendant contends that the risk level three classification is not supported by clear andconvincing evidence, particularly with respect to those risk factors pertaining to the infliction ofphysical injury (15 points), the commission of deviate sexual intercourse (25 points) and the[*2]failure to accept responsibility for the crime (10 points).Based upon our review of the record, we disagree. While the People have the burden ofestablishing the risk level assessment by clear and convincing evidence (see People v Dominie, 42 AD3d589, 590 [2007]; People vArotin, 19 AD3d 845, 847 [2005]), this standard may be satisfied by reliable hearsayconsisting of, among other things, the risk level assessment instrument, the case summary and thepresentence investigation report (seePeople v LaRock, 45 AD3d 1121, 1122 [2007]; People v Lesch, 38 AD3d 1129, 1130 [2007], lv denied 8NY3d 816 [2007]; see generally Correction Law § 168-n [3]). Notably, the riskassessment instrument need not be based solely on the crime of conviction, provided that reliablesources are used (see People v Lesch, 38 AD3d at 1130; Sex Offender Registration Act:Risk Assessment Guidelines and Commentary, at 5 [2006]).
In the case at hand, notwithstanding the fact that defendant's conviction was for sexual abusein the first degree, the case summary, police investigative report and presentence investigationreport contain information from reliable sources substantiating the fact that he had analintercourse with the victim which caused physical injuries requiring the victim to obtain medicaltreatment. Accordingly, the 15 points attributable to the infliction of physical injury and the 25points attributable to the commission of deviate sexual intercourse are supported by clear andconvincing evidence. As for the failure to accept responsibility for the crime, defendant enteredan Alford plea, which was not an admission of guilt, and thereafter made five separateCPL article 440 motions to vacate the judgment of conviction upon various grounds, includingthe purported invalidity of the guilty plea. In view of this, as well as defendant's failure todemonstrate remorse during any of the proceedings before County Court, we find that the 10points attributable to defendant's failure to take responsibility for the crime is also supported byclear and convincing evidence (seePeople v Matthie, 34 AD3d 987, 990 [2006], lvs denied 8 NY3d 805, 847[2007]; People v Walker, 15 AD3d692, 692-693 [2005]; comparePeople v Gonzalez, 28 AD3d 1073, 1074 [2006]). Therefore, we find no reason todisturb the risk level three classification.
Cardona, P.J., Spain, Carpinello and Kane, JJ., concur. Ordered that the order is affirmed,without costs.