SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
January 20, 2011
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
Appeal from an order of the City Court of Yonkers, Westchester County Robert C. Cerrato, J., entered March 13, 2009. The order, after a hearing, designated defendant a level three sex offender pursuant to Correction Law article 6-C.
People v Newton (Gerard)
Decided on January 20, 2011
Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on January 20, 2011
PRESENT: NICOLAI, P.J., LaCAVA and IANNACCI, JJ
ORDERED that the order is affirmed, without costs.
Defendant pleaded guilty to the charge of sexual abuse in the second degree (Penal Law § 130.60), which arose from an incident that occurred on August 16 and 17, 2006 involving an underage female, and to the charge of endangering the welfare of a child (Penal Law § 260.10) in connection with an incident of sexual abuse of another underage female. At the hearing pursuant to the Sex Offender Registration Act (SORA) (Correction Law art 6-C), the risk assessment instrument submitted into evidence assessed defendant with a total score of 120. Defendant disputed the points assessed under risk factors three, four, seven and fifteen. The City Court deducted 10 points assessed under factor fifteen and designated defendant a level three sex offender based upon a total score of 110.
On appeal, defendant contends that the City Court erroneously assessed points under factors three, four and seven, and that he should have been classified as a level one sex offender.
At the hearing, the People had the burden of establishing the proper risk level classification by clear and convincing evidence (Correction Law § 168-n ; see People v King, 46 AD3d 529 ). With respect to risk factor three, the Sex Offender Registration Act: Risk Assessment Guidelines and Commentary (2006 ed) provides, at page 10, that "[t]his category focuses upon the number of people whom the offender victimized in the case (or cases) that resulted in his instant conviction" (see also People v Hoffman, 62 AD3d 976 ). In assessing 20 points under risk factor three, the City Court was not limited to the crime to which defendant pleaded guilty but could instead consider the clear and convincing evidence in the record relating to the second victim associated with the offense of endangering the welfare of a child (see People v Thomas, 59 AD3d 783 ; People v Ramirez, 53 AD3d 990 ). Thus, the court properly assessed 20 points under this risk factor.
We find, contrary to defendant's contention, that the City Court also properly assessed 20 points under risk factor seven of the risk assessment instrument. The People presented clear and convincing evidence demonstrating that defendant had established the relationship with the underage female, in his position as a substitute camp counselor, for the purpose of victimization (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 12 [2006 ed]).
We further find that the clear and convincing evidence established that the City Court properly assessed 20 points under risk factor four, involving the duration of the offense.
Accordingly, the order designating defendant a level three sex offender pursuant to the Sex Offender Registration Act is affirmed.
Nicolai, P.J., LaCava and Iannacci, JJ., concur. Decision Date: January 20, 2011
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