| People v Gauthier |
| 2012 NY Slip Op 07924 [100 AD3d 1223] |
| November 21, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Judd A.Gauthier, Appellant. |
—[*1] Kevin C. Kortright, District Attorney, Fort Edward (Katherine G. Henley of counsel), forrespondent.
Spain, J. Appeal from an order of the County Court of Washington County (Hall Jr., J.),entered July 7, 2011, which classified defendant as a risk level three sex offender pursuant to theSex Offender Registration Act.
In July 2009, defendant pleaded guilty to one count of sexual misconduct and one count ofrape in the second degree in Washington County each involving separate victims. In December2009, defendant pleaded guilty in Rensselaer County to criminal sexual act in the third degree,against a third victim, with his sentence to run concurrently with his Washington Countysentence. In preparation for his release from prison, the Board of Examiners of Sex Offendersclassified defendant as a risk level three sex offender pursuant to the Sex Offender RegistrationAct (see Correction Law art 6-C [hereinafter SORA]) for his Washington Countyconviction. Thereafter, the People and defendant agreed that the Board erred by assigningdefendant 30 points in risk factor 3 by improperly considering the Rensselaer County victim inits calculation and that, absent that error, defendant would be a presumptive risk level II sexoffender. However, because the People nevertheless requested an upward departure to risk levelthree, a hearing was held and County Court ultimately granted that request. Defendant nowappeals from that order, and we affirm.[*2]
Defendant argues that County Court improperlyconsidered the People's documentary evidence without requiring any foundation to establish itsauthenticity. In determining the appropriate risk level to be assigned a defendant, "the court shallreview any victim's statement and any relevant materials and evidence submitted by the sexoffender and the district attorney and the recommendation and any materials submitted by the[B]oard, and may consider reliable hearsay evidence submitted by either party, provided that it isrelevant to the determinations" (Correction Law § 168-n [3]). The Court of Appeals hasspoken to the standard of admissibility for such evidence in SORA hearings, stating that "theLegislature did not limit the proof to what would be admissible at a civil or criminal trial" (People v Mingo, 12 NY3d 563,572 [2009]). More specifically, the Court did not adopt a per se rule for admissibility of evidenceat SORA hearings but, instead, held that "hearsay is reliable for SORA purposes and, therefore,admissible—if, based on the circumstances surrounding the development of the proof, areasonable person would deem it trustworthy" (People v Mingo, 12 NY3d at 574). Thisstandard applies not only to permit the introduction of hearsay evidence but, in many instances,to permit it without the need for accompanying foundation evidence. For example, the Court heldthat, with respect to case summaries and presentence reports, "[n]o foundation is necessary fortheir consideration at SORA hearings because such documents are created under statutorymandates and their origins and function are well-known to SORA courts" (id. at 573).Likewise, "sworn documents . . . including misdemeanor and felony complaints"require no foundation (id.).
Hence, following Mingo, County Court properly accepted into evidence andconsidered the risk assessment instrument and case summary (hereinafter RAI), the presentencereport, the certificate of conviction from Rensselaer County[FN1] and defendant's own sworn statement over his objection that no testimony or other foundationevidence was presented to establish their accuracy. With regard to the Department of Correctionsand Community Supervision disciplinary history summary (hereinafter DOCCS summary),defendant has conceded that he waived any objection to its introduction. At the hearing, the onlysubstantive issues in dispute were the points assessed in the RAI for drug and alcohol abuse, thepoints assessed for his conduct while incarcerated, and his opposition to the People's request foran upward departure based on his Rensselaer County conviction. Defendant's arguments withrespect to these issues focused solely on information in the presentence report, the DOCCSsummary and the certificate of conviction which, as discussed, were all properly introduced intoevidence. Accordingly, we need not decide whether the remaining documents to which defendantobjected were properly introduced.[FN2][*3]
We turn, therefore, to defendant's sole substantiveargument on appeal, i.e., that the People improperly relied on criminal conduct that preceded hiscurrent conviction in establishing that an upward departure from his presumed risk level II to alevel three was warranted. To obtain an upward departure in risk level from the presumptiveclassification, the People must prove, by clear and convincing evidence, the existence of anaggravating factor that was not adequately taken into account in the RAI (see People v Farrell, 78 AD3d1454, 1455 [2010]; People vStewart, 77 AD3d 1029, 1030 [2010]).
Here, defendant's Rensselaer County conviction was based upon conduct with a different16-year-old girl, which occurred after the conduct leading to his Washington County convictionbut prior to that conviction. The Rensselaer County offense clearly was not adequately factoredinto defendant's risk assessment; indeed, defendant and the People stipulated that the RensselaerCounty victim would not be counted in the number of victims and defendant was scored zeropoints for risk factors 9 and 10 (number and nature of prior crimes and recency of prior offense)(compare People v Wyant, 86 AD3d754, 755-756 [2011]). Although defendant contends that because the conduct that resulted inthe subsequent Rensselaer County conviction occurred prior to the Washington Countyconviction it is not probative of his public safety risk, such contention is clearly refuted by thegeneral inclusion of all prior criminal history in the RAI and the Board's use of a presumptiveoverride to risk level three where the offender has a prior felony conviction for a sex crime(see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at3-4, 14 [2006]; People v Thornton,34 AD3d 1026, 1027 [2006], lv denied 8 NY3d 806 [2007]). Accordingly, given thefact that defendant's raw risk assessment score of 105—just five points short of apresumptive risk level three assessment—did not factor in the Rensselaer County conductcommitted in such close temporal proximity to the Washington County crimes and perpetrated ona third victim, we decline to disturb the court's classification of defendant as a risk level three sexoffender (see People v Carpenter, 63AD3d 1320, 1323 [2009], lv denied 13 NY3d 704 [2009]).
Rose, J.P., Malone Jr., Garry and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: In any event, defendant has nowconceded on appeal that the certificate of conviction is a self-authenticating certified publicrecord.
Footnote 2: Notably, defendant has made nospecific factual challenges to the accuracy of any of the documents submitted by the People, andthe remaining documents—all statements of his victims—are forms of evidenceexpressly designated for consideration in SORA hearings (see Correction Law §168-n [3]; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary,General Principles ¶ 7 at 5 [2006]).