Opinion
2014-02-5
PEOPLE of State of New York, respondent, v. Juan ARGUETA, appellant.
Robert C. Mitchell, Riverhead, N.Y. (James H. Miller III of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Marcia R. Kucera of counsel), for respondent.
Robert C. Mitchell, Riverhead, N.Y. (James H. Miller III of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Marcia R. Kucera of counsel), for respondent.
RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, and SHERI S. ROMAN, JJ.
Appeal by the defendant, as limited by his brief, from so much of an order of the County Court, Suffolk County (Kahn, J.), dated March 15, 2013, as, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6–C.
ORDERED that the order is reversed insofar as appealed from, on the law, without costs or disbursements, and the defendant is designated a level one sex offender.
In establishing a defendant's risk level pursuant to the Sex Offender Registration Act (hereinafter SORA; see Correction Law article 6–C), “the People bear the burden of establishing the facts supporting the determination sought by clear and convincing evidence” (People v. King, 80 A.D.3d 681, 682, 914 N.Y.S.2d 671; see People v. Nelmes, 112 A.D.3d 683, 976 N.Y.S.2d 392; Correction Law § 168–n[3]; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5 [2006] ). “ ‘[E]vidence may be derived from the defendant's admissions, the victim's statements, evaluative reports completed by the supervising probation officer, parole officer, or corrections counselor, case summaries prepared by the Board of Examiners of Sex Offenders ... or any other reliable source, including reliable hearsay’ ” (People v. Eaton, 105 A.D.3d 722, 723, 963 N.Y.S.2d 271, quoting People v. Crandall, 90 A.D.3d 628, 629, 934 N.Y.S.2d 446; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5 [2006] ).
Here, the People established by clear and convincing evidence, consisting of the victim's medical records and the presentence report, that the defendant inflicted physical injury on the victim, which supported the assessment of 15 points under risk factor 1 ( see People v. Kruger, 88 A.D.3d 1169, 1170, 931 N.Y.S.2d 753; People v. Sullivan, 64 A.D.3d 67, 73, 883 N.Y.S.2d 44; People v. Fisher, 22 A.D.3d 358, 803 N.Y.S.2d 45; see also People v. Lackey, 36 A.D.3d 953, 955, 827 N.Y.S.2d 331; People v. Painter, 221 A.D.2d 481, 481–482, 633 N.Y.S.2d 547).
However, as the People correctly concede, the County Court improperly assessed the defendant 15 points under risk factor 11 for a history of alcohol abuse. The deduction of 15 points from the defendant's point total on the risk assessment instrument renders a score of 70, which results in a presumptive risk level of one. Accordingly, the defendant should be designated a level one sex offender under SORA ( seeCorrection Law § 168–d[3] ). We note that the defendant remains classified as a “sexually violent offender” (Correction Law § 168–a[3], [7][b] ) and will be subject to lifetime registration requirements ( seeCorrection Law §§ 168–h[2]; 168–o[1]; People v. Pendelton, 50 A.D.3d 659, 660, 855 N.Y.S.2d 191).