| People v Kost |
| 2011 NY Slip Op 01633 [82 AD3d 729] |
| March 1, 2011 |
| Appellate Division, Second Department |
| The People of State of New York, Respondent, v DavidKost, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Marion M. Tang of counsel), forrespondent.
Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), datedSeptember 22, 2009, which, after a hearing, designated him a sexually violent offender and alevel three sex offender pursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
The County Court's designation of the defendant as a level three sexually violent offenderunder the Sex Offender Registration Act (hereinafter SORA) was supported by clear andconvincing evidence (see Correction Law § 168-n [3]). Contrary to the defendant'scontention, he was properly assessed 30 points under risk factor 1 for having been armed with adangerous instrument during the commission of the underlying offense (see Sex OffenderRegistration Act: Risk Assessment Guidelines and Commentary, at 7-8 [2006]). In establishing adefendant's risk level assessment pursuant to SORA, "the People bear the burden of establishingthe facts supporting the determination sought by clear and convincing evidence" (People v King, 80 AD3d 681, 682[2011]; see Correction Law § 168-n [3]; People v Hewitt, 73 AD3d 880 [2010]). The victim's statement,offered by the People at the SORA hearing, constituted "reliable hearsay" (Correction Law§ 168-n [3]; see People vMingo, 12 NY3d 563, 573-574 [2009]; People v Copeland, 79 AD3d 716 [2010], lv denied16 NY3d 705 [2011]), and satisfied the People's burden ofproving, by clear and convincing evidence, that the defendant was armed with a dangerousinstrument during the commission of the offense. That evidence provided a sufficient basis forthe assessment of 30 points under risk factor 1, notwithstanding that the defendant was acquittedat trial of the counts alleging that he possessed a weapon, which establishes only that the jury didnot find all elements of those offenses to have been proved beyond a reasonable doubt, a morerigorous standard of proof than the clear and convincing evidence standard (see People v Vasquez, 49 AD3d1282, 1284 [2008]; People v Powell, 27 Misc 3d 1212[A], 2010 NY Slip Op50719[U] [2010]).
The defendant's remaining contention is without merit. Covello, J.P., Lott, Roman andMiller, JJ., concur.