PEOPLE v. SANTIAGO (2025)

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Queens County (Ira H. Margulis, J.), dated September 28, 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, after a hearing, designated the defendant a level three sex offender.  The defendant appeals, challenging the assessment of points under risk factor 12 (see Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 15–16 [2006]).

“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;  see 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).

Here, the Supreme Court articulated the incorrect standard of proof when it assessed points under risk factor 12 for the defendant's failure to accept responsibility for his conduct.  However, the record is sufficient for this Court to make its own findings under the correct standard of proof (see People v. Walker, 208 A.D.3d 1190, 1192, 174 N.Y.S.3d 127;  People v. Medina, 165 A.D.3d 1184, 1184–1185, 84 N.Y.S.3d 376).  Contrary to the defendant's contention, the Supreme Court's assessment of 10 points under risk factor 12 was supported by clear and convincing evidence, as the defendant's most recent credible statements demonstrated that he minimized his culpability and denied responsibility for his sexual misconduct, notwithstanding that he had participated in a sex offender treatment program (see People v. Espinoza, 222 A.D.3d 668, 670, 202 N.Y.S.3d 206;  People v. Davila, 208 A.D.3d 694, 695, 171 N.Y.S.3d 901).

CONNOLLY, J.P., CHAMBERS, VOUTSINAS and MCCORMACK, JJ., concur.