| People v Dash |
| 2013 NY Slip Op 07948 [111 AD3d 907] |
| November 27, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Samuel Dash, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Tammy J. Smiley andJacqueline Rosenblum of counsel), for respondent.
Appeal by the defendant, as limited by his brief, from so much of an order of theCounty Court, Nassau County (O'Brien, J.), dated January 31, 2012, as, after a hearing toredetermine his sex offender risk level pursuant to the stipulation of settlement in Doev Pataki (3 F Supp 2d 456 [SD NY 1998]), designated him a level three sex offenderpursuant to Correction Law article 6-C.
Ordered that the order is affirmed insofar as appealed from, without costs ordisbursements.
In 1983, the defendant was convicted, upon a jury verdict, of rape in the first degree,sexual abuse in the first degree, and petit larceny (see People v Dash, 126 AD2d737 [1987]). In evaluating the defendant for registration as a sex offender pursuant to theSex Offender Registration Act (see Correction Law art 6-C; hereinafter SORA),the County Court assessed the defendant a total of 115 points, which presumptivelyplaced him in the level three sex offender category. As relevant to the instant appeal, atthe SORA hearing, the County Court assessed the defendant 5 points under risk factor 9and 10 points under risk factor 10 based upon the defendant's prior juvenile delinquencyadjudications. Additionally, the County Court assessed the defendant 10 points underrisk factor 1, rejecting the prosecutor's assertion that the defendant should be assessed 30points under that category based on evidence that he was armed with a dangerousinstrument during the commission of the rape. We affirm the order insofar as appealedfrom, but for reasons other than those set forth by the hearing court (see People v Neuer, 86 AD3d926 [2011]; People vLarkin, 66 AD3d 592 [2009]; People v Hoffman, 62 AD3d 976 [2009]; People v Aldrich, 56 AD3d1228 [2008]; see generally Parochial Bus Sys. v Board of Educ. of City ofN.Y., 60 NY2d 539 [1983]).
As the People correctly concede, in light of this Court's holding in People v Campbell (98 AD3d5 [2012]), the defendant's prior juvenile delinquency adjudications should not havebeen considered in determining his appropriate risk level under SORA (see People v Felice, 100 AD3d609 [2012]). Accordingly, the defendant should not have been assessed 5 pointsunder risk factor 9 and 10 points under risk factor 10.
However, we agree with the People that the defendant should have been assessed 30points, rather than 10, under risk factor 1 based on evidence that he was armed with adangerous instrument during the commission of the rape (see Sex OffenderRegistration Act: Risk Assessment Guidelines and Commentary at 7-8 [2006]; People v Pettigrew, 14 NY3d406, 409 [2010]; People vWilliams, 90 AD3d 880 [2011]; People v Kost, 82 AD3d 729 [2011]). In establishing adefendant's risk level [*2]assessment pursuant to SORA,"the People bear the burden of establishing, by clear and convincing evidence, the factssupporting the determinations sought" (People v Lacewell, 103 AD3d 784, 785 [2013] [internalquotation marks omitted]; see Correction Law § 168-n [3]; People v Finizio, 100 AD3d977, 978 [2012]; People vCrandall, 90 AD3d 628, 629 [2011]; People v Hewitt, 73 AD3d 880 [2010]; People v Chambers, 66 AD3d748, 748 [2009]). "In assessing points, evidence may be derived from thedefendant's admissions, the victim's statements, evaluative reports completed by thesupervising probation officer, parole officer, or corrections counselor, case summariesprepared by the Board of Examiners of Sex Offenders . . . or any otherreliable source, including reliable hearsay" (People v Lacewell, 103 AD3d at 785[internal quotation marks omitted]; People v Finizio, 100 AD3d at 978 [internalquotation marks omitted]; People v Crandall, 90 AD3d at 629; see People v Mabee, 69 AD3d820, 820 [2010]; see alsoPeople v Mingo, 12 NY3d 563 [2009]). Here, as the People correctly point out,the presentence report prepared by the Department of Probation, the felony complaintsworn to and signed by the arresting officer, and the arrest report constituted "reliablehearsay" (Correction Law § 168-n [3]) and provided clear and convincingevidence that the defendant was armed with a dangerous instrument during thecommission of the rape (see People v Mingo, 12 NY3d at 572; People v Williams, 95 AD3d1093, 1093-1094 [2012]; People v Burch, 90 AD3d 1429, 1431 [2011]; People vWilliams, 90 AD3d at 881; People v Conway, 47 AD3d 492, 493 [2008]; People v Hines, 24 AD3d524, 525 [2005]). Contrary to the defendant's contention, the fact that certainstatements contained in these documents constituted "double hearsay" did not necessarilyrender them unreliable for purposes of a SORA hearing (see People v Hines, 24AD3d at 525). Moreover, even though certain proof may not have been admissible at thecriminal trial, the Legislature did not limit the types of materials admissible in a SORAproceeding to what would be admissible at a civil or criminal trial (see People vMingo, 12 NY3d at 572; People v Wyatt, 89 AD3d 112, 117 [2011]).
Taking into account the above errors, the County Court should have assessed thedefendant a total of 120 points, rather than 115. As this total score still makes him apresumptive level three sex offender, the order must be affirmed insofar as appealedfrom. Mastro, J.P., Leventhal, Austin and Sgroi, JJ., concur.