| People v Arroyo |
| 2008 NY Slip Op 07056 [54 AD3d 1141] |
| September 25, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Hector L.Arroyo, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Cheryl A. Mancini of counsel), forrespondent.
Stein, J. Appeal from an order of the County Court of Broome County (Smith, J.), enteredNovember 2, 2007, which classified defendant as a risk level three sex offender and a sexuallyviolent offender pursuant to the Sex Offender Registration Act.
Defendant pleaded guilty in 2003 to sexual abuse in the first degree after being charged withvarious crimes in relation to the rape of a 15-year-old girl. In June 2007, the Board of Examinersof Sex Offenders presumptively classified defendant as a risk level three sex offender (145points) in accordance with the Sex Offender Registration Act (see Correction Law art6-C). Following a hearing, County Court concurred with that classification. Defendant nowappeals, claiming that he was improperly assessed points in two categories on the risk assessmentinstrument and also that a downward departure was warranted.
It is the People's burden to establish the proper risk level classification by clear andconvincing evidence and, in arriving at its risk level determination, County Court can considerreliable hearsay evidence (see People vHazen, 47 AD3d 1091, 1092 [2008]; People v LaRock, 45 AD3d 1121, 1122 [2007]), which includes thepresentence investigation report, the case summary and a victim's sworn statement to the police(see People v Hazen, 47 AD3d at 1092; People v Kaminski, 38 AD3d 1127, 1128 [2007], lv denied9 NY3d 803 [2007]; People vDominie, 42 AD3d 589, 590 [2007]). With respect to risk factor 9, defendant received30 points [*2]in this category because of his convictions of twocounts of endangering the welfare of a child in 2000. Defendant claims that he was never chargedwith those crimes nor pleaded guilty to them and, therefore, there should have been noassessment for this category. The record indicates that defendant was charged, in separateinformations, with two counts of endangering the welfare of a child based on sworn statementsby the two victims. In addition, the certificate of disposition and the commitment forimprisonment document, as well as the case summary and the presentence investigation report,indicate that defendant was, in fact, convicted of endangering the welfare of a child, providingthe requisite clear and convincing evidence to support the 30-point assessment in this category.
Defendant also challenges his assessment of 15 points under risk factor 12. Even if areduction of defendant's score by the 15 points assessed for this risk factor was warranted, theresulting total of 130 points still places defendant within the risk level three classification. Thus,the order should be affirmed unless mitigating circumstances exist that would warrant a furtherreduction. Since clear and convincing evidence does not exist to support a downward departurein defendant's risk level classification (see People v Johnson, 46 AD3d 1032, 1033 [2007]; People v Pride, 37 AD3d 957, 958[2007], lv denied 8 NY3d 812 [2007]), we will not disturb County Court's determination.
Mercure, J.P., Peters, Spain and Malone Jr., JJ., concur. Ordered that the order is affirmed,without costs.