PEOPLE v. HARDEN (2009)

Order, Supreme Court, New York County (Gregory Carro, J.), entered on or about October 22, 2007, which adjudicated defendant a level three sex offender under the Sex Offender Registration Act (Correction Law art. 6-C), unanimously affirmed, without costs.

The People met their burden of establishing, by clear and convincing evidence, risk factors bearing a sufficient total point score to support a level three adjudication.   The risk factor for deviant sexual intercourse was established by grand jury testimony that was corroborated by a laboratory report.   We conclude that this evidence was sufficiently reliable to meet the clear and convincing standard notwithstanding the presence of some inconsistencies.   The court also properly assessed points under the factor for drug abuse based on defendant's own admission, coupled with his criminal history (see People v. Reyes, 48 A.D.3d 267, 851 N.Y.S.2d 489 [2008] ), and assessed an appropriate number of points under the factor for lack of supervised release, although this was a matter beyond defendant's control (see People v. Lewis, 37 A.D.3d 689, 690, 830 N.Y.S.2d 312 [2007], lv. denied 8 N.Y.3d 814, 838 N.Y.S.2d 840, 870 N.E.2d 160 [2007] ).