Opinion
No. 11–070.
2012-12-27
The PEOPLE of the State of New York, Respondent, v. Ernest DAVIS, Defendant–Appellant.
Defendant appeals from an order of the Criminal Court of the City of New York, New York County (Robert M. Mandelbaum, J.), entered September 14, 2010, which, after a hearing, designated him a level two sex offender and a predicate sex offender pursuant to the Sex Offender Registration Act.
Present: SCHOENFELD, J.P., SHULMAN, HUNTER, JR., JJ.
PER CURIAM.
Order (Robert M. Mandelbaum, J.), entered September 14, 2010, modified by vacating the determination that defendant is a predicate sex offender and, as modified, affirmed.
The People met their burden of establishing, by clear and convincing evidence, risk factors bearing a sufficient total point score to support a level two sex offender adjudication. Defendant's challenge to the 30–point assessment based upon his prior criminal history, to the extent preserved for appellate review, is lacking in merit, since his case summary constituted “reliable hearsay” for SORA purposes (People v. Mingo, 12 NY3d 563, 573 [2009] ) and established that he was previously convicted of a misdemeanor sex offense. The court properly exercised its discretion in denying defendant a downward departure from his presumptive risk level ( see People v. Guaman, 8 AD3d 545 [2004] ). However, as the People concede, the court erred in classifying defendant as a predicate sex offender.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.