Opinion
2016–00089
05-22-2019
PEOPLE of State of New York, Respondent, v. Samuel CUSPERT, Appellant.
Janet E. Sabel, New York, N.Y. (Kerry Elgarten of counsel), for appellant. John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Antara D. Kanth of counsel), for respondent.
Janet E. Sabel, New York, N.Y. (Kerry Elgarten of counsel), for appellant.
John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Antara D. Kanth of counsel), for respondent.
REINALDO E. RIVERA, J.P., RUTH C. BALKIN, LEONARD B. AUSTIN, ROBERT J. MILLER, JJ.
DECISION & ORDER Appeal by the defendant from an order of the Supreme Court, Queens County (Barry Kron, J.), dated December 8, 2015, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6–C.
ORDERED that the order is affirmed, without costs or disbursements.
We agree with the Supreme Court's determination assessing the defendant points under risk factor 1, for use of a dangerous instrument, and risk factor 11, for a history of substance abuse. In establishing an offender's appropriate risk level under the Sex Offender Registration Act (Correction Law art 6–C; hereinafter SORA), "[t]he People ‘bear the burden of proving the facts supporting the determinations’ by clear and convincing evidence" ( People v. Pettigrew, 14 N.Y.3d 406, 408, 901 N.Y.S.2d 569, 927 N.E.2d 1053, quoting Correction Law § 168–n[3] ; see People v. Mingo, 12 N.Y.3d 563, 571, 883 N.Y.S.2d 154, 910 N.E.2d 983 ). Here, the defendant's use of a dangerous instrument and history of substance abuse were established by clear and convincing evidence in the form of his presentence report and the case summary completed by the Board of Examiners of Sex Offenders. Contrary to the defendant's contention, these items constituted reliable hearsay, and, thus, the court properly relied upon them in assessing the defendant's level of risk (see Correction Law § 168–n[3] ; People v. Mingo, 12 N.Y.3d at 572–573, 576, 883 N.Y.S.2d 154, 910 N.E.2d 983 ).
The defendant's contention that certain factors warrant a downward departure from his presumptive risk level is unpreserved for appellate review because he did not raise these grounds at the SORA hearing (see People v. Soriano, 167 A.D.3d 668, 86 N.Y.S.3d 893 ; People v. Joseph, 163 A.D.3d 594, 76 N.Y.S.3d 829 ). In any event, the defendant was not entitled to a downward departure (see People v. Alvin, 166 A.D.3d 1025, 86 N.Y.S.3d 752 ; People v. Curry, 158 A.D.3d 52, 62, 68 N.Y.S.3d 483 ; People v. DeJesus, 127 A.D.3d 1047, 5 N.Y.S.3d 893 ; see generally People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ).
RIVERA, J.P., BALKIN, AUSTIN and MILLER, JJ., concur.