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The People of the State of v. Daniel E. Gleason

State of New York Supreme Court, Appellate Division Third Judicial Department


June 30, 2011

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
DANIEL E. GLEASON, APPELLANT.

Appeal from an order of the County Court of Montgomery County (Catena, J.), entered March 23, 2010, which classified defendant as a risk level II sex offender pursuant to the Sex Offender Registration Act.

The opinion of the court was delivered by: Peters, J.

MEMORANDUM AND ORDER

Calendar Date: May 27, 2011

Before: Mercure, J.P., Peters, Malone Jr., Kavanagh and Stein, JJ.

In 2008, defendant pleaded guilty to criminal sexual act in the third degree and was sentenced to three years in prison followed by seven years of postrelease supervision. In anticipation of defendant's release from prison, the Board of Examiners of Sex Offenders submitted a risk assessment instrument to County Court pursuant to the Sex Offender Registration Act (see Correction Law art 6--C) with a score of 105 points, presumptively classifying defendant as a risk level II sex offender. Following a hearing, County Court adopted the Board's recommendation and classified defendant as a risk level II sex offender. Defendant now appeals.

We affirm. To establish the appropriate risk level, the People bear the burden of producing clear and convincing evidence, which may consist of reliable hearsay evidence (see People v Rhodehouse, 77 AD3d 1032, 1033 [2010], lv denied 16 NY3d 701 [2011]; People v Parker, 62 AD3d 1195, 1196 [2009], lv denied 13 NY3d 704 [2009]). Here, the People satisfied that burden with respect to the assessment of 20 points for the victim being a stranger to defendant, as the victim stated that she met defendant that day while at her friend's apartment complex and defendant's own statement to police evidenced that he did not know the victim's name (see People v Milton, 55 AD3d 1073, 1073 [2008]; People v Kaminski, 38 AD3d 1127, 1128 [2007], lv denied 9 NY3d 803 [2007]). Additionally, because defendant recanted his admissions regarding the extent of his involvement with the victim, and because he called into question both the victim's character and her motivation regarding the incident, we cannot say that he was improperly assessed 10 points for failing to accept responsibility (see People v Lerch, 66 AD3d 1088, 1088 [2009], lv denied 13 NY3d 715 [2010]; People v Legall, 63 AD3d 1305, 1306 [2009], lv denied 13 NY3d 706 [2009]).

Mercure, J.P., Malone Jr., Kavanagh and Stein, JJ., concur.

ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20110630

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