| People v Willette |
| 2009 NY Slip Op 08714 [67 AD3d 1259] |
| November 25, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Steven J.Willette, Appellant. |
—[*1] Timothy G. Blatchley, Special Prosecutor, Plattsburgh, for respondent.
Peters, J.P. Appeal from an order of the County Court of Franklin County (Main Jr., J.),entered February 25, 2008, which classified defendant as a risk level three sex offender pursuantto the Sex Offender Registration Act.
In 1984, defendant was convicted of two counts of sexual abuse in the first degree arisingout of sexual contact with his girlfriend's daughter, who was four years old at the time.Following a redetermination hearing conducted pursuant to Doe v Pataki (3 F Supp 2d456 [1998]), County Court reclassified defendant as a risk level three sex offender under theterms of the Sex Offender Registration Act (see Correction Law art 6-C). Defendantappeals and we affirm.
In deciding whether the People established defendant's appropriate risk level classificationby clear and convincing evidence, County Court may consider reliable hearsay evidence (seePeople v Legall, 63 AD3d 1305, 1306 [2009], lv denied 13 NY3d 706 [2009];People v Parker, 62 AD3d 1195, 1196 [2009], lv denied 13 NY3d 704 [2009]).Defendant claims that the victim's unsworn statement did not constitute such evidence, butCounty Court is directed to review a victim's statement, be it sworn or unsworn (seeCorrection Law § 168-n [3]; People v Mingo, 12 NY3d 563, 576-577 [2009]).While a victim's unsworn statement may be disregarded if it "is equivocal, inconsistent withother evidence, or seems dubious in light of other information in the record," defendant wasinvited to direct County Court's attention to such [*2]problems atthe redetermination hearing and failed to do so (People v Mingo, 12 NY3d at 577;see People v Stewart, 61 AD3d 1059, 1060 [2009]). Moreover, the victim's statementwas corroborated to some degree by her grand jury testimony and the testimony of her mother atvarious proceedings, and we cannot say that County Court erred in considering it.
Nor was the statement of the victim's brother erroneously considered. Her brother alsoclaimed to have been victimized by defendant, but defendant was acquitted of the only countinvolving such. Assuming without deciding that such acquittal disqualifies the statement as onemade by a victim for purposes of the statute (cf. People v Wroten, 286 AD2d 189,199-200 [2001], lv denied 97 NY2d 610 [2002]), defendant's conviction is over 20 yearsold, the statement at issue was sworn, made in the course of a police investigation intodefendant's alleged abuse and described defendant's abuse of the victim as well as of her brother,and the trial testimony of her brother did not significantly contradict the events related in it.Considering these factors, County Court properly concluded that the statement of the victim'sbrother constituted reliable hearsay (see People v Mingo, 12 NY3d at 574).
Defendant lastly contends that he was improperly assessed risk factor points for the extent ofhis sexual contact with the victim and the duration of the offensive conduct. With regard to theformer, the statements of the victim and her brother and admissions made by defendant to thevictim's mother provide clear and convincing evidence that defendant had engaged in sexualintercourse and oral sexual conduct with the victim, thereby warranting an assessment of 25points (see Penal Law § 130.00 [1], [2] [a]; People v Lesch, 38 AD3d1129, 1130 [2007], lv denied 8 NY3d 816 [2007]). That evidence, coupled withdefendant's convictions for acts of sexual abuse that occurred in June and July 1983, alsosupports the assessment of 20 points on the latter factor (see People v Wright, 53 AD3d963, 964 [2008], lv denied 11 NY3d 710 [2008]; People v Richards, 50 AD3d1329, 1330 [2008], lv denied 10 NY3d 715 [2008]).
As defendant was properly assessed as a risk level three sex offender, we need not reach hisargument that, if he had not been, an upward departure to risk level three would be unjustified.
Rose, Kane, Kavanagh and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.