PEOPLE v. BARNES (2023)

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Queens County (Cassandra M. Mullen, J.), dated January 3, 2023, 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 this proceeding pursuant to the Sex Offender Registration Act (Correction Law art 6–C;  hereinafter SORA), the Supreme Court assessed the defendant 125 points on the risk assessment instrument and designated him a level three sex offender.  On appeal, the defendant challenges the assessment of 30 points under risk factor one (armed with a dangerous instrument).

“In establishing an offender's appropriate risk level under SORA, the People ‘bear the burden of proving the facts supporting the determinations sought by clear and convincing evidence’ ” (People v. Watkins, 168 A.D.3d 1007, 1007–1008, 91 N.Y.S.3d 246, quoting 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 ․, or any other reliable source, including reliable hearsay” (People v. Crandall, 90 A.D.3d 628, 629, 934 N.Y.S.2d 446;  see Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 5 [2006]).

Here, contrary to the defendant's contention, the People established by clear and convincing evidence that the assessment of 30 points under risk factor one, for being armed with a dangerous instrument, was warranted.  The sworn grand jury testimony of one of the victims, which established that the defendant was armed with a firearm while committing the underlying offense, was reliable within the meaning of SORA (see People v. Mingo, 12 N.Y.3d 563, 574, 883 N.Y.S.2d 154, 910 N.E.2d 983;  People v. Gorostiza, 210 A.D.3d 1118, 1119, 179 N.Y.S.3d 334).

Accordingly, the Supreme Court properly designated the defendant a level three sex offender.

BARROS, J.P., WOOTEN, FORD and WARHIT, JJ., concur.