PEOPLE v. GURDON (2025)

DECISION & ORDER

Appeal by the defendant from an order of the County Court, Suffolk County (Karen M. Wilutis, J.), dated March 15, 2024, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6–C.

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

The defendant pleaded guilty to rape in the second degree (Penal Law § 130.30[1]) for acts involving a 14–year–old girl.  After a hearing conducted pursuant to the Sex Offender Registration Act (SORA) (Correction Law art 6–C), the County Court assessed the defendant 90 points on the risk assessment instrument, resulting in a presumptive risk level two designation, and designated the defendant a level two sex offender.  The defendant appeals.

“ ‘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. Bautista, 210 A.D.3d 1020, 1021, 179 N.Y.S.3d 288, quoting People v. Levy, 192 A.D.3d 928, 929, 140 N.Y.S.3d 721;  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. Vasquez, 189 A.D.3d 1480, 1481, 134 N.Y.S.3d 765, quoting People v. Luna, 187 A.D.3d 805, 806, 130 N.Y.S.3d 323).

Contrary to the defendant's contention, the County Court properly assessed 20 points under risk factor 7 (relationship with victim).  The minimal exchange that took place between the victim and the defendant prior to the defendant's commission of the underlying offense does not demonstrate that the defendant was “an actual acquaintance of the victim” (Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 12 [2006];  see People v. DeJesus–Jiminez, 232 A.D.3d 915, 915, 221 N.Y.S.3d 222;  People v. Powell, 188 A.D.3d 734, 734, 131 N.Y.S.3d 899).

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

CHAMBERS, J.P., DOWLING, MCCORMACK and QUIRK, JJ., concur.