| People v Perez |
| 2013 NY Slip Op 01344 [104 AD3d 403] |
| March 5, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Hector Perez, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Sheila L. Bautista of counsel), forrespondent.
Order, Supreme Court, New York County (Renee A. White, J.), entered on or aboutOctober 19, 2010, which adjudicated defendant a level three sexually violent offenderpursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimouslyaffirmed, without costs.
The People met their burden of establishing, by clear and convincing evidence, riskfactors bearing a sufficient total point score to support a level three sex offenderadjudication. The court properly assessed 20 points for sexual misconduct whileconfined, based on defendant's prison disciplinary record.
Defendant argues that since a disciplinary disposition may be based on a standard ofsubstantial evidence, it does not satisfy the requirement that risk factors be establishedunder a standard of clear and convincing evidence. It is unnecessary to decide whether adisciplinary determination automatically provides clear and convincing evidence of theunderlying facts, since in this case the totality of the information presented at the sexoffender hearing, including defendant's admissions to repeated instances of prohibitedsexual activity in prison, amply supported this risk factor.
Defendant also argues that since his consensual sexual activity would have beenlawful, as well as being constitutionally protected (see Lawrence v Texas, 539US 558 [2003]), had it not occurred in a prison setting, it did not indicate a potential forunlawful sexual activity. However, the conduct at issue undisputedly violated prisonrules, and "defendant's inability to refrain from [*2]forbidden sexual conduct . . . was relevant tohis potential for sexual recidivism" (People v Salley, 67 AD3d 525, 526 [1st Dept 2009], lvdenied 14 NY3d 703 [2010]). Concur—Gonzalez, P.J., Mazzarelli, Renwick,Richter and Gische, JJ.