| People v Bateman |
| 2009 NY Slip Op 01050 [59 AD3d 788] |
| February 11, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Gary F.Bateman, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
Malone Jr., J. Appeal from an order of the County Court of Broome County (Smith, J.),entered November 27, 2007, which classified defendant as a risk level three sex offenderpursuant to the Sex Offender Registration Act.
Defendant was convicted in 1981 of rape in the first degree, sodomy in the first degree,sexual abuse in the first degree and robbery in the first degree. In anticipation of a sex offenderregistration assessment hearing in November 2007, the Board of Examiners of Sex Offendersprepared a risk assessment instrument assigning defendant a risk assessment score of 145,thereby presumptively classifying him as a risk level three sex offender. Following the hearing,County Court reduced defendant's score to 125 points and, finding nothing to support adownward modification, classified defendant as a risk level three sex offender. Defendant nowappeals.
Defendant takes issue with the risk level three classification claiming that he was improperlyassessed points in several categories. Initially, we note that the People bear the burden ofdemonstrating the proper risk level classification by clear and convincing evidence (see People v Arroyo, 54 AD3d1141, 1141 [2008], lv denied 11 NY3d 711 [2008]). This burden [*2]may be satisfied by the introduction of reliable hearsay evidence,including the presentence investigation report and statements made by the victim(see People v Longtin, 54 AD3d1110, 1111 [2008], lv denied 11 NY3d 714 [2008]; People v Warren, 42 AD3d 593,594 [2007], lv denied 9 NY3d 810 [2007]; People v Arotin, 19 AD3d 845, 847 [2005]).
Here, a point assessment for defendant's prior larceny conviction was adequately supportedby the presentence investigation report and defendant's own admission during the hearing that hehad been convicted of grand larceny in 1979. To the extent that defendant now contends that hedid not use a weapon during the commission of the 1981 rape and robbery, such is belied by thevictim's statement, contained in the presentence investigation report, that defendant struck herseveral times in the head with a rock while perpetrating the crimes. With regard to substanceabuse, we find that County Court's assessment of points was proper, inasmuch as defendantadmitted that he had used both alcohol and marihuana prior to the crime giving rise to thisproceeding (see People v Longtin, 54 AD3d at 1111; see also Sex OffenderRegistration Act: Risk Assessment Guidelines and Commentary, at 15 [2006]). We also findample evidence of defendant's unsatisfactory conduct during supervision, given his admissionduring the hearing and the testimony of his parole officer, who related numerous paroleviolations including an incident during which defendant absconded, giving rise to an interstate,multiple jurisdictional manhunt. Finally, considering defendant's admissions that the victim wasa stranger, the court properly assessed defendant points for his relationship with the victim. Insum, we find that the record contains clear and convincing evidence supporting the risk levelthree classification.
We have examined defendant's contention that his classification should have been modifieddownward and find that defendant has failed to demonstrate circumstances justifying such adeparture (see People v Coleman,45 AD3d 1118, 1118-1119 [2007], lv denied 10 NY3d 705 [2008]; People vArotin, 19 AD3d at 847).
Cardona, P.J., Mercure, Lahtinen and Stein, JJ., concur. Ordered that the order is affirmed,without costs.