| People v Headley |
| 2017 NY Slip Op 01242 [147 AD3d 988] |
| February 15, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Allan Headley, Appellant. |
Seymour W. James, Jr., New York, NY (E. Deronn Bowen of counsel; Sean Farrow on thebrief), for appellant.
Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart of counsel),for respondent.
Appeal by the defendant from an order of the Supreme Court, Richmond County (Rooney,J.), dated August 15, 2013, which, after a hearing, designated him a level two sex offenderpursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
In this proceeding under the Sex Offender Registration Act (hereinafter SORA; seeCorrection Law § 168 et seq.), the Supreme Court assessed the defendant 80points on the risk assessment instrument (hereinafter RAI), within the range for a presumptivedesignation as a level two sex offender, and it designated him a level two sex offender. On thisappeal, the defendant challenges the assessment of 50 of those points, which were based onconduct underlying counts of the indictment on which the jury found the defendant not guilty.We affirm.
There is no per se rule in a SORA proceeding proscribing a court's consideration of evidenceunderlying indictment counts on which the defendant has been found not guilty (see People v Kost, 82 AD3d 729,729 [2011]). An acquittal establishes "only that the jury did not find all elements of thoseoffenses to have been proved beyond a reasonable doubt, a more rigorous standard of proof thanthe clear and convincing evidence standard" applicable in a SORA risk level determinationproceeding (id. at 729; seePeople v Vasquez, 49 AD3d 1282, 1284 [2008]). Here, the SORA court, which hadpresided over the defendant's criminal trial, had ample basis for finding that the victim'stestimony constituted clear and convincing evidence supporting the assessment of the disputedpoints. Further, the SORA court had before it evidence that, after denying his guilt entirely in histestimony at trial, the defendant made partial admissions of guilt to personnel at the Departmentof Corrections and Community Supervision and to the Parole Board.
The defendant's remaining contention is improperly raised for the first time on appeal.
Accordingly, the defendant was properly designated a level two sex offender (see People v Sincerbeaux, 27 NY3d683, 688-689 [2016]; People v Kost, 82 AD3d at 729; People v Vasquez, 49AD3d at 1284). Mastro, J.P., Dillon, Balkin and Maltese, JJ., concur.