| People v Stewart |
| 2009 NY Slip Op 02506 [61 AD3d 1059] |
| April 2, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Donald J.Stewart, Appellant. |
—[*1] Richard J. McNally Jr., District Attorney, Troy (Kelly L. Egan of counsel), forrespondent.
Mercure, J. Appeal from an order of the County Court of Rensselaer County (McGrath, J.),entered May 14, 2008, which classified defendant as a risk level three sex offender pursuant tothe Sex Offender Registration Act.
Defendant pleaded guilty in September 1998 to aggravated sexual abuse in the seconddegree and was sentenced to a prison term of 7½ to 15 years. In anticipation of defendant'srelease from prison, the Board of Examiners of Sex Offenders prepared a risk assessmentinstrument, which presumptively classified defendant as a risk level two sex offender (90 points)in accordance with the Sex Offender Registration Act (see Correction Law art 6-C), butrecommended an upward departure from that risk level. At the hearing that followed, CountyCourt denied the Board's request—in which the People had joined—on the groundthat it was rendered academic by the court's determination that defendant should be assessed anadditional 20 points for the number of victims, thereby raising defendant's overall score to 110points and classifying him as a risk level three sex offender. Defendant now appeals, contendingthat County Court's classification is not supported by clear and convincing evidence.
The People bear the burden of establishing the proper risk level classification by clear andconvincing evidence (see People vLesch, 38 AD3d 1129, 1130 [2007], lv denied 8 NY3d [*2]816 [2007]; People v Arotin, 19 AD3d 845, 847 [2005]), i.e., "evidence whichmakes it highly probable that the alleged activity actually occurred" (People v Dominie, 42 AD3d 589,590 [2007] [internal quotation marks and citations omitted]). To that end, County Court mayconsider reliable hearsay including, among other things, the presentence investigation report,risk assessment instrument and case summary (see People v Hazen, 47 AD3d 1091, 1092 [2008]), as well as anygrand jury testimony and the victim's sworn statement to police (see People v Dominie,42 AD3d at 590). We note, however, that hearsay statements that are vague, inconsistent orequivocal, and otherwise unsubstantiated, do not qualify as "reliable" and, hence, cannot rise tothe level of clear and convincing evidence (see id.).
Here, in finding that there were multiple victims, County Court relied upon a statement madeby the then seven-year-old victim in September 1998 that "[defendant] told me he did this withCara and Cara liked it so I would, too." Noting that defendant admitted that "[e]verything [thevictim] said I did when I did it is all true," County Court reasoned that there indeed were twovictims and assessed an additional 20 points. The flaw in the court's analysis is that defendant'sJuly 1998 admission was made two months prior to the victim's statement suggesting thepossibility of another victim. Therefore, defendant's statement cannot be deemed to corroboratethe victim's allegation, and the belief of the victim's mother that defendant may have sexuallyabused another child is similarly deficient. In the absence of any reliable evidence to substantiatethe finding of multiple victims, the equivocal hearsay evidence relied upon by County Courtdoes not constitute clear and convincing evidence (see People v Warrior, 57 AD3d 1471, 1471 [2008]).
Accordingly, defendant's total risk factor score must be reduced by 20 points, resulting in apresumptive classification as a risk level two sex offender. Notwithstanding the presumptiveclassification, however, we note that the record contains evidence that an upward departure maybe warranted. Inasmuch as County Court did not consider whether an upward departure wasappropriate in light of its determination that defendant was a risk level three sex offender, weremit the matter to County Court for consideration of any factors warranting an upwardmodification (see People v Swain,46 AD3d 1157, 1159 [2007]; seealso People v Miranda, 24 AD3d 909, 911-912 [2005]).
Cardona, P.J., Malone Jr., Kavanagh and McCarthy, JJ., concur. Ordered that the order isreversed, on the law, without costs, and matter remitted to the County Court of RensselaerCounty for further proceedings not inconsistent with this Court's decision.