Opinion
533708
06-29-2023
The PEOPLE of the State of New York, Appellant. v. Jose ORTIZ, Respondent.
Tina K. Sodhi, Alternate Public Defender, Albany (Steven M. Sharp of counsel), for appellant. P. David Soares, District Attorney, Albany (Erin N. LaValley of counsel), for respondent.
Tina K. Sodhi, Alternate Public Defender, Albany (Steven M. Sharp of counsel), for appellant.
P. David Soares, District Attorney, Albany (Erin N. LaValley of counsel), for respondent.
Before: Egan Jr., J.P., Aarons, Ceresia, Fisher and McShan, JJ.
MEMORANDUM AND ORDER
Egan Jr., J.P. Appeal from an order of the Supreme Court (Peter A. Lynch, J.), entered May 14, 2021 in Albany County, which classified defendant as a risk level two sex offender pursuant to the Sex Offender Registration Act.
In December 2019, defendant pleaded guilty to a superior court information charging him with attempted sexual abuse in the first degree and he was sentenced to 1½ years in prison, to be followed by 10 years of postrelease supervision. In anticipation of his release from prison, the Board of Examiners of Sex Offenders prepared a risk assessment instrument presumptively classifying defendant as a risk level one sex offender (65 points) pursuant to the Sex Offender Registration Act (see Correction Law art 6–C). The People submitted a risk assessment instrument that presumptively classified defendant as a risk level two sex offender (85 points). Following a hearing, Supreme Court classified defendant as a risk level two sex offender with a sexually violent offender designation and denied defendant's request for a downward departure. Defendant appeals.
Defendant's sole challenge on appeal is that Supreme Court erred in assigning him 20 points under risk factor 4 for continuing course of sexual misconduct. "The People bear the burden of proving the facts supporting the determination of a defendant's risk level by clear and convincing evidence" ( People v. Davis, 135 A.D.3d 1256, 1256, 23 N.Y.S.3d 492 [3d Dept. 2016] [internal quotation marks and citations omitted], lv denied 27 N.Y.3d 904, 2016 WL 1691883 [2016] ; see People v. Howland, 211 A.D.3d 1189, 1190, 179 N.Y.S.3d 464 [3d Dept. 2022] ). As relevant here, the People were required to establish by clear and convincing evidence that defendant had engaged in "three or more acts of sexual contact over a period of at least two weeks" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 10 [2006]; see People v. Teal, 158 A.D.3d 902, 903, 70 N.Y.S.3d 608 [3d Dept. 2018], lv denied 32 N.Y.3d 901, 2018 WL 4131882 [2018] ). In assessing points under this risk factor, Supreme Court "was not limited to the crime to which defendant pleaded guilty but could, instead, consider reliable hearsay evidence in the record" ( People v. Darrah, 153 A.D.3d 1528, 1528, 61 N.Y.S.3d 390 [3d Dept. 2017] ; see People v. Ackley, 95 A.D.3d 1463, 1463, 944 N.Y.S.2d 360 [3d Dept. 2012] ), including sworn felony complaints (see People v. Mingo, 12 N.Y.3d 563, 573, 883 N.Y.S.2d 154, 910 N.E.2d 983 [2009] ). Contrary to defendant's contention, the description of defendant's conduct in a sworn felony complaint provided clear and convincing evidence of a continuing course of sexual misconduct warranting the assessment of 20 points under risk factor 4 (see id. at 576–577, 883 N.Y.S.2d 154, 910 N.E.2d 983 ; People v. DeJesus, 127 A.D.3d 1047, 1047, 5 N.Y.S.3d 893 [2nd Dept. 2015], lv denied 25 N.Y.3d 913, 2015 WL 3970860 [2015] ). As such, we decline to disturb the determination.
Aarons, Ceresia, Fisher and McShan, JJ., concur.
ORDERED that the order is affirmed, without costs.