PEOPLE v. EASON (2024)

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Suffolk County (Chris Ann Kelley, J.), dated September 14, 2021, as amended, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6–C.

ORDERED that the order, as amended, is affirmed, without costs or disbursements.

The defendant was convicted, upon his plea of guilty, of sexual abuse in the first degree.  After a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6–C;  hereinafter SORA), the Supreme Court assessed the defendant 85 points on the risk assessment instrument, presumptively placing him within the range for a level two designation.  In an order dated September 14, 2021, as amended, the court designated the defendant a level two sex offender.

On appeal, the defendant contends that the People failed to establish, by clear and convincing evidence, facts to support the assessment of 15 points under risk factor 12, acceptance of responsibility.  The defendant also contends that he was deprived of the effective assistance of counsel because his counsel, inter alia, did not present facts relevant for a downward departure from the defendant's presumptive risk level.

“In establishing a defendant's risk level pursuant to SORA, the People bear the burden of establishing facts supporting the determination sought by clear and convincing evidence” (People v. Brown, 194 A.D.3d 861, 861, 143 N.Y.S.3d 610).  “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).

Contrary to the defendant's contention, the Supreme Court's assessment of points under risk factor 12 was proper.  The People presented clear and convincing evidence, including the case summary prepared by the Board of Examiners of Sex Offenders, of the defendant's failure to accept responsibility for his actions and his removal from a sex offender treatment program (see People v. Bautista, 210 A.D.3d 1020, 1021, 179 N.Y.S.3d 288;  People v. Murphy, 68 A.D.3d 832, 833, 890 N.Y.S.2d 605).  The defendant proffered no evidence to the contrary (see People v. Harmon, 145 A.D.3d 688, 690, 44 N.Y.S.3d 68;  cf.  People v. Pietarniello, 53 A.D.3d 475, 476, 862 N.Y.S.2d 69).

Contrary to the defendant's further contention, counsel was not ineffective.  The record reflects that counsel provided meaningful representation, and there is no reasonable probability that, but for counsel's purported errors, the result of the proceeding would have been different (see People v. Korzeniowski, 220 A.D.3d 816, 818, 198 N.Y.S.3d 157;  People v. Mizhquiri–Duarte, 211 A.D.3d 977, 977–978, 180 N.Y.S.3d 596;  People v. Bowles, 89 A.D.3d 171, 181, 932 N.Y.S.2d 112).

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

CHAMBERS, J.P., WOOTEN, VENTURA and LOVE, JJ., concur.