| People v McFall |
| 2012 NY Slip Op 01705 [93 AD3d 962] |
| March 8, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Leonard D.McFall, Appellant. |
—[*1] James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler of counsel), forrespondent.
Lahtinen, J. Appeal from an order of the County Court of Saratoga County (Scarano, J.),entered October 8, 2009, which classified defendant as a risk level three sex offender and asexually violent offender pursuant to the Sex Offender Registration Act.
Defendant was arrested after he allegedly subjected two young victims to repeated sexualcontact, and he eventually pleaded guilty to one count of sexual abuse in the first degree. Prior tohis release from prison, the Board of Examiners of Sex Offenders prepared a risk assessmentinstrument and recommended that defendant be classified as a risk level three sex offender (115points) in accordance with the Sex Offender Registration Act. At the hearing, defense counselstated that he did not think the People's proof was sufficient to show that defendant failed toparticipate in treatment (15 points) and, thus, urged that he should be a risk level two sexoffender. County Court reserved decision on that category and gave the People two weeks tosubmit any additional evidence regarding defendant's refusal to undergo treatment and gavedefendant one week to respond. The People submitted an inmate review packet from theDepartment of Corrections and Community Supervision indicating that defendant refusedtreatment. Thereafter, County Court classified defendant as a risk level three sex offender anddefendant now appeals.
We affirm. "The People bear the burden of establishing the appropriate risk level [*2]classification by clear and convincing evidence [and] [s]uchevidence may consist of reliable hearsay including, among other things, the presentenceinvestigation report, risk assessment instrument and case summary" (People v Parker, 62 AD3d 1195,1196 [2009], lv denied 13 NY3d 704 [2009] [internal quotation marks and citationsomitted]; see People v Pettigrew, 14NY3d 406, 408-409 [2010]; Peoplev Mingo, 12 NY3d 563, 572-573 [2009]). Here, the case summary—which wasreliable hearsay—set forth that defendant refused both sex offender and substance abuseprograms while incarcerated. Although this constituted adequate proof on this issue, CountyCourt was not required to credit this information (see People v Mingo, 12 NY3d at 573).In response to defendant's contention that the proof was insufficient on this point, County Courtdid not reject the proof, but instead reserved making a determination until provided furthersupporting documentation. Defendant asserts that the further documentation from theDepartment submitted by the People did not constitute adequate evidence. However, sufficientreliable hearsay had already been submitted in the case summary, and this additionaldocumentation served as corroboration of the case summary's statement that defendant refused toparticipate in treatment. The evidence supports County Court's classification of defendant as arisk level three sex offender (see Peoplev Dickison, 24 AD3d 980, 981 [2005], lv denied 6 NY3d 709 [2006]).
Defendant did not object when County Court adjourned the hearing to permit the submissionof further proof and, accordingly, his current contention that this constituted error was notpreserved for review (see People vWilliamson, 73 AD3d 1398, 1398-1399 [2010]; People v McLean, 55 AD3d 973, 974 [2008]).
Peters, J.P., Rose, Kavanagh and Garry, JJ., concur. Ordered that the order is affirmed,without costs.