| People v Carleo |
| 2011 NY Slip Op 02367 [82 AD3d 1067] |
| March 22, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Anthony Carleo, Appellant. |
—[*1] Thomas P. Zugibe, District Attorney, New City, N.Y. (Itamar J. Yeger of counsel), forrespondent.
Appeal by the defendant from an order of the County Court, Rockland County (Bartlett, J.),dated September 3, 2009, 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 a proceeding to determine a defendant's designation under the Sex Offender RegistrationAct (hereinafter SORA) (see Correction Law art 6-C), the People bear the "burden ofproving the facts supporting the determinations sought by clear and convincing evidence"(Correction Law § 168-n [3]; seePeople v Mingo, 12 NY3d 563, 571 [2009]; People v Bright, 63 AD3d 1133 [2009]; People v Atkinson, 65 AD3d 1112[2009]; People v Inghilleri, 21AD3d 404, 406 [2005]; SORA: Risk Assessment Guidelines and Commentary, at 5, ¶7 [2006]). The People may satisfy their burden of proof through the submission of, among otherthings, the risk assessment instrument and case summary, the presentence report, the defendant'sadmission, and the victim's statement (see People v Mingo, 12 NY3d at 573; People v Burgess, 6 AD3d 686,686 [2004]; SORA: Risk Assessment Guidelines and Commentary, at 5, ¶ 7 [2006]).
In reaching its determination, the hearing court, inter alia, "may consider reliable hearsayevidence submitted by either party, provided that it is relevant to the determinations" (CorrectionLaw § 168-n [3]; see People v Mingo, 12 NY3d at 574; People v Bolton, 50 AD3d 990[2008]). Generally, grand jury testimony meets the "reliable hearsay" standard and may besufficient for the People to meet their burden of proof (see People v Mingo, 12 NY3d at573). "Although not subject to cross-examination, this evidence is taken under oath, a significant,though not indispensable, indication of reliability" (id. at 573). However, any statementcontained in grand jury testimony need not be credited "when it is unduly speculative or itsaccuracy is undermined by other more compelling evidence" (id. at 573).
Here, contrary to the defendant's contention, although the victim's grand jury testimony wasundisputedly inaccurate about two specific dates upon which she alleged the defendant sexuallyabused her, under the circumstances, it was not improper for the hearing court to treat the balanceof [*2]her testimony as reliable hearsay evidence, as the balanceof her testimony was largely consistent with her initial statement to the police, and thedefendant's guilty plea, in effect, corroborates a portion of the balance of her testimony (seePeople v Mingo, 12 NY3d at 574; see also People v Hewitt, 73 AD3d 880, 881 [2010]; People v Willette, 67 AD3d 1259[2009]; People v Craig, 45 AD3d1365 [2007]).
Turning to the merits, we find no grounds to disturb the hearing court's determination toassess the defendant 25 points under risk factor 2 and 20 points under risk 4 as, among otherthings, the balance of the victim's grand jury testimony and her statement to the police, which issummarized in the presentence report, support, by clear and convincing evidence, a finding thatthe defendant engaged in sexual intercourse with the victim on at least one occasion and that thedefendant's sexual contact with the victim transpired over several months (see CorrectionLaw § 168-n [3]). Covello, J.P., Belen, Hall and Cohen, JJ., concur.