Opinion
12-14-2016
PEOPLE of State of New York, respondent, v. Dean PICARIELLO, appellant.
Clare J. Degnan, White Plains, NY (Jacqueline F. Oliva and Erica Danielsen of counsel), for appellant. James A. McCarty, Acting District Attorney, White Plains, NY (Hae Jin Liu and Laurie G. Sapakoff of counsel), for respondent.
Clare J. Degnan, White Plains, NY (Jacqueline F. Oliva and Erica Danielsen of counsel), for appellant.
James A. McCarty, Acting District Attorney, White Plains, NY (Hae Jin Liu and Laurie G. Sapakoff of counsel), for respondent.
REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, and FRANCESCA E. CONNOLLY, JJ.
Appeal by the defendant from an order of the Supreme Court, Westchester County (Cacace, J.), dated August 26, 2015, 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 (Correction Law art. 6–C; hereinafter SORA), "the People bear the burden of establishing, by clear and convincing evidence, the facts supporting the determinations sought" (People v. Eaton, 105 A.D.3d 722, 723, 963 N.Y.S.2d 271 ; see Correction Law § 168–n[3] ). "In assessing points, evidence may be derived from the defendant's admissions, 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 (hereinafter the Board), or any other reliable source, including reliable hearsay" (People v. Crandall, 90 A.D.3d 628, 629, 934 N.Y.S.2d 446 ).
SORA guidelines provide that under risk factor 1, "[p]hysical injury means ‘impairment of physical condition or substantial pain’ (Penal Law § 10.00 [9 ] )" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 8 [2006] ). Contrary to the defendant's contentions, the Supreme Court properly assessed 15 points against him under risk factor 1 for infliction of physical injury. The assessment of these points was supported by clear and convincing evidence in the record, including a medical evaluation of the victim which revealed tearing of her hymen and complaints of pain (see People v. Salas, 104 A.D.3d 463, 464, 960 N.Y.S.2d 119 ; People v. Fisher, 22 A.D.3d 358, 358, 803 N.Y.S.2d 45 ).
Under risk factor 7, "[t]he guidelines assess 20 points if the offender's crime ... was directed at a stranger or a person with whom a relationship had been established or promoted for the primary purpose of victimization" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 12). The People demonstrated by clear and convincing evidence that the defendant's relationship with the complainant had been established or promoted for the primary purpose of victimization, and the Supreme Court properly assessed 20 points against the defendant under risk factor 7 (see People v. Uphael, 140 A.D.3d 1143, 1144, 35 N.Y.S.3d 194 ; People v. Duart, 84 A.D.3d 908, 908–909, 923 N.Y.S.2d 149 ; People v. Carlton, 307 A.D.2d 763, 762 N.Y.S.2d 560 ).
In light of the foregoing, we need not reach the defendant's remaining contention.