Opinion
2014-08607
05-06-2015
PEOPLE of State of New York, respondent, v. Rodney MORRISON, appellant.
Robert C. Mitchell, Riverhead, N.Y. (James H. Miller III of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Philip J. Branigan 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. (Philip J. Branigan of counsel), for respondent.
RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, ROBERT J. MILLER, and SYLVIA O. HINDS–RADIX, JJ.
Opinion Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), dated July 30, 2014, 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.
At a hearing to determine an offender's risk level under the Sex Offender Registration Act (see Correction Law art. 6–C [hereinafter SORA] ), the People bear the burden of proving by clear and convincing evidence the facts supporting the determination they seek (see Correction Law § 168–n [3] ; People v. Dash, 111 A.D.3d 907, 908, 977 N.Y.S.2d 39 ). The People may satisfy their burden through, among other things, reliable hearsay evidence (see People v. Patronick, 117 A.D.3d 1018, 1018–1019, 986 N.Y.S.2d 593 ; People v. Dash, 111 A.D.3d at 908, 977 N.Y.S.2d 39 ).
In this case, the only issue on appeal is whether the People proved by clear and convincing evidence that the defendant was armed with a dangerous instrument during the incident, such that the assessment of 30 points under risk factor 1 was proper (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 7–8 [2006]; People v. Pettigrew, 14 N.Y.3d 406, 408, 901 N.Y.S.2d 569, 927 N.E.2d 1053 ; People v. Dash, 111 A.D.3d at 908, 977 N.Y.S.2d 39 ). As the hearing court found, the People satisfied their burden. The victim's sworn account, given shortly after the incident, was sufficient to establish by clear and convincing evidence that the defendant possessed a knife during the incident (see People v. Kost, 82 A.D.3d 729, 729, 917 N.Y.S.2d 916 ; cf. People v. Mingo, 98 A.D.3d 490, 491, 949 N.Y.S.2d 463 ). Accordingly, the assessment of 30 points under risk factor 1 was proper. Moreover, upon assessing a total of 120 points, the hearing court properly designated the defendant a level three sex offender (see People v. Dash, 111 A.D.3d at 909, 977 N.Y.S.2d 39 ).