Opinion
06-08-2016
PEOPLE of State of New York, respondent, v. Melvin ALAS, appellant.
Seymour W. James, Jr., New York, N.Y. (Natalie Rea of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, William H. Branigan, and Anish M. Patel of counsel), for respondent.
Seymour W. James, Jr., New York, N.Y. (Natalie Rea of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, William H. Branigan, and Anish M. Patel of counsel), for respondent.
RANDALL T. ENG, P.J., WILLIAM F. MASTRO, JOSEPH J. MALTESE, and HECTOR D. LaSALLE, JJ.
Appeal by the defendant from an order of the Supreme Court, Queens County (Koenderman, J.), dated August 26, 2013, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6–C.
ORDERED that the order is affirmed, without costs or disbursements.
Contrary to the People's contention, this appeal from an order designating the defendant a level two sex offender pursuant to the Sex Offender Registration Act (see Correction Law article 6–C; hereinafter SORA) should not be dismissed on the ground that the defendant has been deported (see People v. Shim, 139 A.D.3d 68, 28 N.Y.S.3d 87 [2d Dept.2016] ; People v. Ibarra, 137 A.D.3d 1097, 26 N.Y.S.3d 867 ). In establishing a defendant's risk level pursuant to SORA, the People bear the burden of establishing, by clear and convincing evidence, the facts supporting the determinations sought (see Correction Law § 168–n[3] ; People v. Pettigrew, 14 N.Y.3d 406, 408, 901 N.Y.S.2d 569, 927 N.E.2d 1053 ; People v. Mingo, 12 N.Y.3d 563, 571, 883 N.Y.S.2d 154, 910 N.E.2d 983 ). In assessing points, evidence may be derived from the defendant's admissions, the victim's statements, evaluative reports completed by the supervising probation officer, the parole officer, or the correction counselor, case summaries prepared by the Board of Examiners of Sex Offenders (hereinafter the Board), or any other reliable source, including reliable hearsay (see People v. Mingo, 12 N.Y.3d at 571–573, 883 N.Y.S.2d 154, 910 N.E.2d 983 ; People v. Sanchez, 136 A.D.3d 1007, 26 N.Y.S.3d 320 ; People v. Arocho, 130 A.D.3d 996, 997, 13 N.Y.S.3d 836 ). Contrary to the defendant's contention, the Supreme Court properly assessed 20 points against him under risk factor 4 for engaging in a continuing course of sexual misconduct against the victim. The assessment of these points was supported by clear and convincing evidence in the record, including the Board's case summary, the presentence report, and the felony complaint (see People v. Arocho, 130 A.D.3d at 997, 13 N.Y.S.3d 836 ; People v. DeJesus, 127 A.D.3d 1047, 5 N.Y.S.3d 893 ; People v. Patronick, 117 A.D.3d 1018, 1019, 986 N.Y.S.2d 593 ).