Opinion
2014-02-5
PEOPLE of State of New York, respondent, v. Harold McPHERSON, appellant.
Mark Diamond, New York, N.Y., for appellant. David M. Hoovler, District Attorney, Middletown, N.Y. (Elizabeth L. Schulz and Robert H. Middlemiss of counsel), for respondent.
Mark Diamond, New York, N.Y., for appellant. David M. Hoovler, District Attorney, Middletown, N.Y. (Elizabeth L. Schulz and Robert H. Middlemiss of counsel), for respondent.
PETER B. SKELOS, J.P., MARK C. DILLON, THOMAS A. DICKERSON, and LEONARD B. AUSTIN, JJ.
Appeal by the defendant from an order of the County Court, Orange County (DeRosa, J.), dated November 28, 2012, 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.
In establishing a defendant's risk level pursuant to the Sex Offender Registration Act ( see Correction Law article 6–C), the People bear the burden of establishing, by clear and convincing evidence, the facts supporting the determinations sought ( seeCorrection Law § 168–n[3]; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5 [2006]; People v. Pettigrew, 14 N.Y.3d 406, 408, 901 N.Y.S.2d 569, 927 N.E.2d 1053). “ ‘In assessing points, evidence may be derived from ... 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. Barbour, 111 A.D.3d 813, 813–814, 975 N.Y.S.2d 164, quoting People v. Crandall, 90 A.D.3d 628, 629, 934 N.Y.S.2d 446; seeCorrection Law § 168–n[3]; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5 [2006]; see also People v. Mingo, 12 N.Y.3d 563, 571–572, 883 N.Y.S.2d 154, 910 N.E.2d 983).
Contrary to the defendant's contention, he was properly assessed points under risk factor four, for engaging in a continuing course of sexual misconduct against the victim. The People established, by clear and convincing evidence, the facts supporting the assessment of those points through the victim's statement contained in the presentence report, which was supported by the indictment ( see People v. Thompson, 111 A.D.3d 613, 973 N.Y.S.2d 808; see also People v. Bright, 63 A.D.3d 1133, 1134, 883 N.Y.S.2d 79; People v. Hines, 24 A.D.3d 524, 807 N.Y.S.2d 608; cf. People v. Lacewell, 103 A.D.3d 784, 785, 962 N.Y.S.2d 193).
The defendant's remaining contentions are either without merit or not properly before this Court.