| People v Mabee |
| 2010 NY Slip Op 00488 [69 AD3d 820] |
| January 19, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Christian Mabee, Appellant. |
—[*1] Francis D. Phillips II, District Attorney, Goshen, N.Y. (Robert H. Middlemiss and AndrewR. Kass of counsel), for respondent.
Appeal by the defendant from an order of the County Court, Orange County (De Rosa, J.),dated September 5, 2007, which, after a hearing, designated him a level three sex offenderpursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
In establishing an offender's appropriate risk level under the Sex Offender Registration Act(see Correction Law art 6-C; hereinafter SORA), the People bear the burden of provingthe facts supporting the determination by "clear and convincing evidence" (Correction Law§ 168-n [3]; see People vMingo, 12 NY3d 563, 571 [2009]; People v Bright, 63 AD3d 1133, 1134 [2009]; People v Hegazy, 25 AD3d 675,676 [2006]). The facts at a SORA hearing may be proved, inter alia, by "reliable hearsay"(Correction Law § 168-n [3]), including case summaries prepared by the Board ofExaminers of Sex Offenders (hereinafter the Board) (see People v Mingo, 12 NY3d at573). Here, however, the case summary prepared by the Board to assess the defendant's risk levelprovided only very limited information about his alleged prior history of drug and alcohol abuse.Under these circumstances, the case summary alone was insufficient to satisfy the People'sburden of proving, by the requisite clear and convincing evidence, that the defendant had a priorhistory of drug and alcohol abuse (seePeople v Irizarry, 36 AD3d 473 [2007]; People v Collazo, 7 AD3d 595 [2004]). Accordingly, the hearingcourt should not have assessed the defendant 15 points for a prior history of drug and alcoholabuse under risk factor 11. However, deducting these 15 points from the total points assessedagainst the defendant does not alter his presumptive risk level.
Contrary to the defendant's contention, the hearing court properly assessed 20 points againsthim under risk factor 7 because he was a stranger to the victim. The grand jury testimony of the13-year-old victim, which was offered into evidence at the hearing, revealed that she and thedefendant met for the first time on the same day they engaged in sexual intercourse. Thus, thedefendant was a stranger to the victim within the meaning of risk factor 7 (see People v Britt, 66 AD3d 853[2009]; People v Serrano, 61 AD3d946, 947 [2009]; People vHardy, 42 AD3d 487 [2007]).
The hearing court also properly assessed the defendant 10 points under risk factor 13 forunsatisfactory conduct while confined. The defendant's unsatisfactory conduct during hisincarceration was established by the case summary, which revealed his recent commission of atier III disciplinary violation (see Sex Offender Registration Act: Risk AssessmentGuidelines and Commentary at 16 [2006]; [*2]People v Ealy, 55 AD3d 1313,1314 [2008]; People v Chabrier, 38AD3d 355 [2007]).
The defendant's contention that he was improperly assessed 15 points under risk factor 12because his removal from treatment did not evince a failure to accept responsibility is withoutmerit (see People v Murphy, 68AD3d 832 [2009]; People vRouff, 49 AD3d 517, 518 [2008]; People v Brister, 38 AD3d 634 [2007]). Santucci, J.P., Balkin, Engand Chambers, JJ., concur.