PEOPLE v. BATEMAN (2009)

Appeal from an order of the County Court of Broome County (Smith, J.), entered November 27, 2007, which classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act.

Defendant was convicted in 1981 of rape in the first degree, sodomy in the first degree, sexual abuse in the first degree and robbery in the first degree.   In anticipation of a sex offender registration assessment hearing in November 2007, the Board of Examiners of Sex Offenders prepared a risk assessment instrument assigning defendant a risk assessment score of 145, thereby presumptively classifying him as a risk level III sex offender.   Following the hearing, County Court reduced defendant's score to 125 points and, finding nothing to support a downward modification, classified defendant as a risk level III sex offender.   Defendant now appeals.

 Defendant takes issue with the risk level III classification claiming that he was improperly assessed points in several categories.   Initially, we note that the People bear the burden of demonstrating the proper risk level classification by clear and convincing evidence (see People v. Arroyo, 54 A.D.3d 1141, 1141, 864 N.Y.S.2d 213 [2008], lv. denied 11 N.Y.3d 711, 872 N.Y.S.2d 73, 900 N.E.2d 556 [2008] ).   This burden may be satisfied by the introduction of reliable hearsay evidence, including the presentence investigation report and statements made by the victim (see People v. Longtin, 54 A.D.3d 1110, 1111, 864 N.Y.S.2d 203 [2008], lv. denied 11 N.Y.3d 714, --- N.Y.S.2d ----, --- N.E.2d ---- [2008];  People v. Warren, 42 A.D.3d 593, 594, 840 N.Y.S.2d 176 [2007], lv. denied 9 N.Y.3d 810, 844 N.Y.S.2d 786, 876 N.E.2d 515 [2007];  People v. Arotin, 19 A.D.3d 845, 847, 796 N.Y.S.2d 743 [2005] ).

 Here, a point assessment for defendant's prior larceny conviction was adequately supported by the presentence investigation report and defendant's own admission during the hearing that he had been convicted of grand larceny in 1979.   To the extent that defendant now contends that he did not use a weapon during the commission of the 1981 rape and robbery, such is belied by the victim's statement, contained in the presentence investigation report, that defendant struck her several times in the head with a rock while perpetrating the crimes.   With regard to substance abuse, we find that County Court's assessment of points was proper, inasmuch as defendant admitted that he had used both alcohol and marihuana prior to the crime giving rise to this proceeding (see People v. Longtin, 54 A.D.3d at 1111, 864 N.Y.S.2d 203;  see also Sex Offender Registration Act:  Risk Assessment Guidelines 2d Commentary, at 15 [2006] ).   We also find ample evidence of defendant's unsatisfactory conduct during supervision, given his admission during the hearing and the testimony of his parole officer, who related numerous parole violations including an incident during which defendant absconded, giving rise to an interstate, multiple jurisdictional manhunt.   Finally, considering defendant's admissions that the victim was a stranger, the court properly assessed defendant points for his relationship with the victim.   In sum, we find that the record contains clear and convincing evidence supporting the risk level III classification.

We have examined defendant's contention that his classification should have been modified downward and find that defendant has failed to demonstrate circumstances justifying such a departure (see People v. Coleman, 45 A.D.3d 1118, 1118-1119, 846 N.Y.S.2d 460 [2007], lv. denied 10 N.Y.3d 705, 857 N.Y.S.2d 38, 886 N.E.2d 803 [2008];  People v. Arotin, 19 A.D.3d at 847, 796 N.Y.S.2d 743).

ORDERED that the order is affirmed, without costs.

MALONE JR., J.

CARDONA, P.J., MERCURE, LAHTINEN and STEIN, JJ., concur.