Opinion
645 KA 20-00289
09-30-2022
The PEOPLE of the State of New York, Respondent, v. Nicholas B. MAHAR, Defendant-Appellant.
ANDREW D. CORREIA, PUBLIC DEFENDER, ROCHESTER (BRIDGET L. FIELD OF COUNSEL), FOR DEFENDANT-APPELLANT. MICHAEL D. CALARCO, DISTRICT ATTORNEY, LYONS, FOR RESPONDENT.
ANDREW D. CORREIA, PUBLIC DEFENDER, ROCHESTER (BRIDGET L. FIELD OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL D. CALARCO, DISTRICT ATTORNEY, LYONS, FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CENTRA, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs. Memorandum: Defendant appeals from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act ( Correction Law § 168 et seq. ) after a conviction of sexual abuse in the first degree ( Penal Law § 130.65 [3] ). We previously held this case, reserved decision, and remitted the matter to County Court to comply with Correction Law §§ 168-d (3) and 168-n (3) by setting forth the findings of fact and conclusions of law upon which it based its determinations ( People v. Mahar , 191 A.D.3d 1237, 1237, 137 N.Y.S.3d 758 [4th Dept. 2021] ). Upon remittal, the court issued a written decision that fulfilled its statutory obligations. Contrary to defendant's contention, the court properly assessed 25 points under risk factor 2, for sexual contact with the victim (sexual intercourse, oral sexual conduct, anal sexual conduct, or aggravated sexual abuse). The evidence consisted of a letter prepared by a mental health counselor who conducted clinical assessments of three of the four children who had lived with defendant, all three of whom disclosed that defendant had had sexual contact with them. One child disclosed that defendant had engaged in anal sexual conduct with two of the four children. We conclude that the statements of the children constituted reliable hearsay that provided the requisite clear and convincing evidence for the assessment of points under that risk factor (see People v. Darrah , 153 A.D.3d 1528, 1528, 61 N.Y.S.3d 390 [3d Dept. 2017] ; People v. Law , 94 A.D.3d 1561, 1562-1563, 943 N.Y.S.2d 814 [4th Dept. 2012], lv denied 19 N.Y.3d 809, 2012 WL 3743354 [2012] ; People v. Burch , 90 A.D.3d 1429, 1430-1431, 936 N.Y.S.2d 351 [3d Dept. 2011] ).
Defendant further contends that the court erred in assessing 30 points under risk factor 3 for having three or more victims. It is well settled that, in determining the number of victims, " ‘the hearing court is not limited to the crime of which defendant was convicted’ " ( People v. Vasquez , 149 A.D.3d 1584, 1585, 52 N.Y.S.3d 806 [4th Dept. 2017], lv denied 29 N.Y.3d 916, 2017 WL 3908423 [2017] ; see People v. Jones , 196 A.D.3d 1179, 1180, 147 N.Y.S.3d 915 [4th Dept. 2021], lv denied 37 N.Y.3d 916, 2021 WL 5934280 [2021] ; People v. Tubbs , 124 A.D.3d 1094, 1094, 1 N.Y.S.3d 561 [3d Dept. 2015] ). Thus, contrary to defendant's contention, the fact that he pleaded guilty with respect to only one victim is not dispositive (see People v. Urrego , 145 A.D.3d 923, 923-924, 42 N.Y.S.3d 841 [2d Dept. 2016], lv denied 29 N.Y.3d 905, 2017 WL 1591091 [2017] ). The court properly considered reliable hearsay evidence that there were at least two additional victims in the case that ultimately resulted in defendant's conviction (see People v. Morrison , 156 A.D.3d 831, 831-832, 67 N.Y.S.3d 246 [2d Dept. 2017] ; People v. Madera , 100 A.D.3d 1111, 1112, 953 N.Y.S.2d 385 [3d Dept. 2012] ; People v. Radage , 98 A.D.3d 1194, 1194, 951 N.Y.S.2d 584 [3d Dept. 2012], lv denied 20 N.Y.3d 855, 958 N.Y.S.2d 698, 982 N.E.2d 618 [2012] ). We agree with defendant that the court erred in assessing 20 points for risk factor 4, for a continuing course of sexual misconduct. The documents in the record do not specify when defendant's acts of sexual misconduct "occurred relative to each other and thus [are] insufficient to establish a continuing course of sexual misconduct" ( People v. Farrell , 142 A.D.3d 1299, 1300, 37 N.Y.S.3d 805 [4th Dept. 2016] ; see People v. Ellis , 204 A.D.3d 1388, 1389-1390, 166 N.Y.S.3d 772 [4th Dept. 2022] ; People v. Edmonds , 133 A.D.3d 1332, 1332, 20 N.Y.S.3d 802 [4th Dept. 2015], lv denied 26 N.Y.3d 918, 2016 WL 634947 [2016] ). Even without those 20 points, however, defendant is still a level three risk (see generally People v. Loughlin , 145 A.D.3d 1426, 1427, 44 N.Y.S.3d 821 [4th Dept. 2016], lv denied 29 N.Y.3d 906, 2017 WL 1719017 [2017] ).
Finally, we reject defendant's contention that the court erred in assessing 10 points under risk factor 12, for not accepting responsibility. Although defendant made some admissions in his statements to the police, he also tried to blame the children for any sexual contact, and some of his explanations were incredible. We conclude that "[t]aking all of defendant's statements together, ... they do not reflect a genuine acceptance of responsibility as required by the risk assessment guidelines" ( Ellis , 204 A.D.3d at 1389, 166 N.Y.S.3d 772 [internal quotation marks omitted]).