PEOPLE v. WARREN (2007)

Appeal from an order of the Supreme Court (Demarest, J.), entered May 9, 2006 in St. Lawrence County, which classified defendant a risk level III sex offender pursuant to the Sex Offender Registration Act.

Defendant pleaded guilty in 1998 to sexual abuse in the first degree in satisfaction of an indictment which also charged rape in the first degree, sexual abuse in the third degree and assault in the third degree.   Upon completion of his four-year sentence, defendant registered in accordance with the Sex Offender Registration Act (see Correction Law art. 6-C) (hereinafter SORA). The Board of Examiners of Sex Offenders completed a risk assessment instrument (hereinafter RAI), calculating a score of 105 points indicating a risk level II classification.   The Board recommended an upward departure to level III based, in part, on its finding that defendant had established a pattern of assaultive behavior toward vulnerable individuals.   After several hearings, Supreme Court issued a detailed written decision concluding, based upon its own evaluation of each of the risk factors in the RAI, that defendant's total risk factor score was 110 points, and designated him as a risk level III offender.   Defendant appeals.

 Initially, defendant raises a claim of procedural due process deprivation.   SORA states that at least 15 days prior to the risk level determination proceeding, the offender and court must be given written notice of the assessment sought by the prosecution and the reasons for seeking such determination (see Correction Law § 168-d [3];  People v. Davila, 299 A.D.2d 573, 573, 750 N.Y.S.2d 196 [2002];  People v. Neish, 281 A.D.2d 817, 817, 722 N.Y.S.2d 815 [2001] ).   Here, the People admittedly failed to provide defendant with notice of their recommendation prior to the March 10, 2006 hearing at which they also recommended that defendant be classified as a risk level III offender, although assigning him a higher risk factor score on the RAI than did the Board.   Defendant contends that the People thereby waived their right to be heard and their evidence should not have been considered. We disagree.   Defendant's receipt of the required documents on March 10, 2006 and Supreme Court's adjournment of the hearing until April 5, 2006-at which defendant and counsel were given and pursued an ample and meaningful opportunity to respond to all aspects of the People's and the Board's risk level assessments-adequately protected defendant's due process rights (see People v. Jordan, 31 A.D.3d 1196, 818 N.Y.S.2d 718 [2006], lv. denied 7 N.Y.3d 714, 824 N.Y.S.2d 606, 857 N.E.2d 1137 [2006];  see generally People v. David W., 95 N.Y.2d 130, 711 N.Y.S.2d 134, 733 N.E.2d 206 [2000];  cf. People v. Farchione, 27 A.D.3d 1166, 810 N.Y.S.2d 726 [2006];  People v. Davila, supra at 573, 750 N.Y.S.2d 196;  People v. MacNeil, 283 A.D.2d 835, 836, 727 N.Y.S.2d 485 [2001];  People v. Neish, supra at 817, 722 N.Y.S.2d 815).

 We next address defendant's challenge to his risk level assessment.   It is, of course, the People's burden to establish the proper risk level classification by clear and convincing evidence (see Correction Law § 168-n [3];  People v. Dickison, 24 A.D.3d 980, 981, 805 N.Y.S.2d 198 [2005], lv. denied 6 N.Y.3d 709, 813 N.Y.S.2d 45, 846 N.E.2d 476 [2006] ).   The court may consider reliable hearsay evidence including the RAI, the case summary and the presentence investigation report (see People v. Cruz, 28 A.D.3d 819, 819, 811 N.Y.S.2d 816 [2006];  People v. Dort, 18 A.D.3d 23, 24-25, 792 N.Y.S.2d 236 [2005], lv. denied 4 N.Y.3d 885, 798 N.Y.S.2d 730, 831 N.E.2d 975 [2005] ).   In this case, the record provides clear and convincing evidence to support the risk level III classification.   Supreme Court's assessment of 15 points for alcohol abuse is supported by evidence of defendant's long history of alcohol-related offenses and by the identification of this problem in the psychological assessments submitted to the court (see People v. Vaughn, 26 A.D.3d 776, 777, 809 N.Y.S.2d 718 [2006] ).   While defendant has received treatment, his recent history of abstinence while incarcerated is not necessarily predictive of his behavior when no longer under such supervision (see People v. Barnes, 6 Misc.3d 469, 477, 789 N.Y.S.2d 843 [2004] ).

 We also find no error in Supreme Court's assessment of 10 points for defendant's attempted escape and assault on a correction officer while confined to jail in 1998.   These actions, which occurred prior to the entry of defendant's guilty plea which satisfied any additional related charges, clearly constitute conduct while in custody and were properly considered as “postoffense behavior” under Part III, No. 13 of the RAI (see Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary, at 5, 15 [Nov. 1997] ).   Contrary to defendant's contentions, this factor is not limited-by statute, guidelines, case law or common sense-to post sentencing behavior;  rather, it may include any post offense conduct while in custody or under supervision, whether charges are pending or have been disposed of.

 Finally, while Supreme Court is empowered to downwardly depart from the presumptive risk level based upon the facts in the record (see People v. Guaman, 8 A.D.3d 545, 778 N.Y.S.2d 704 [2004];  see also People v. Mothersell, 26 A.D.3d 620, 621, 808 N.Y.S.2d 510 [2006] ), the question of whether any mitigating factors exist to warrant such a reduction is within the sound discretion of the court to decide (see People v. McCormick, 21 A.D.3d 1221, 1222, 801 N.Y.S.2d 432 [2005] ).   On this record, we do not find that the court abused its discretion in denying defendant's request for a downward departure from the presumptive risk level.

ORDERED that the order is affirmed, without costs.

SPAIN, J.

CREW III, J.P., MUGGLIN, LAHTINEN and KANE, JJ., concur.