| People v Hewitt |
| 2010 NY Slip Op 04158 [73 AD3d 880] |
| May 11, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JasonHewitt, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Linda Breen ofcounsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Sullivan, J.),dated October 23, 2008, which designated him a level three sex offender, pursuant to CorrectionLaw article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
In establishing the appropriate risk level designation under the Sex Offender RegistrationAct (see Correction Law art 6-C; hereinafter SORA), the People bear the burden ofproving the necessary facts by clear and convincing evidence (see Correction Law§ 168-n [3]; People vLawless, 44 AD3d 738 [2007]; People v Hardy, 42 AD3d 487 [2007]). The facts may be proved,inter alia, by reliable hearsay. "[T]he court shall review . . . any relevant materialsand evidence submitted by the sex offender and the district attorney and the recommendation andany materials submitted by the board, and may consider reliable hearsay evidence submitted byeither party, provided that it is relevant to the determinations" (Correction Law § 168-n[3]; see People v Mingo, 12 NY3d563, 572-573 [2009]).
In light of the defendant's admissions to the New York City Department of Probation, asrevealed in the presentence report, that he used heroin on a daily basis, and based upon the factsthat this incident arose out of a drug sale and that the defendant had three prior convictions forcriminal possession of a controlled substance prior to the commission of the instant offense, theSupreme Court properly assessed 15 points for risk factor 11, which relates to history of drugabuse (see People v Murphy, 68AD3d 832 [2009]; People vStruble, 49 AD3d 1348, 1349 [2008]; People v Masters, 19 AD3d 387 [2005]).
Contrary to the defendant's contention, he was properly assessed points for risk factor 7,because he was a stranger to the victim. The grand jury testimony of the victim indicated that thedefendant first met the victim when he approached her outside of a bar and offered to sell hercocaine. The rape took place shortly thereafter, when they went to a park to complete the drugtransaction. Thus, clear and convincing evidence existed to establish that they were strangers(see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 12[2006]; People v Mabee, 69 AD3d820 [2010]; People v Serrano,61 AD3d 946, 947 [2009]; People vLewis, 45 AD3d 1381, 1381-1382 [2007]; People v Hardy, 42 AD3d 487 [2007]).[*2]
Accordingly, the Supreme Court's designation of thedefendant as a level three sex offender under SORA is supported by clear and convincingevidence and should not be disturbed (see People v Pardo, 50 AD3d 992 [2008]). Skelos, J.P., Balkin,Roman and Sgroi, JJ., concur.