People of State of New York, respondent, v. David Kost, appellant. (2011)

Submitted-February 8, 2011

DECISION & ORDER

Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), dated September 22, 2009, which, after a hearing, designated him a sexually violent offender and a level three sex offender pursuant to Correction Law article 6-C.

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

The County Court's designation of the defendant as a level three sexually violent offender under the Sex Offender Registration Act (hereinafter SORA) was supported by clear and convincing evidence (see Correction Law § 168-n [3] ).   Contrary to the defendant's contention, he was properly assessed 30 points under risk factor one for having been armed with a dangerous instrument during the commission of the underlying offense (see Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary, at 7-8 [2006 ed.] ).   In establishing a defendant's risk level assessment pursuant to SORA, “the People bear the burden of establishing the facts supporting the determination sought by clear and convincing evidence” (People v. King, 80 AD3d 681;  see Correction Law § 168-n[3];  People v. Hewitt, 73 AD3d 880).   The victim's statement, offered by the People at the SORA hearing, constituted “reliable hearsay” (Correction Law § 168-n[3];  see People v. Mingo, 12 NY3d 563, 573-574;  People v. Copeland, 79 AD3d 716, lv denied NY3d, 2011 N.Y. Slip Op 64715 [2011] ), and satisfied the People's burden of proving, by clear and convincing evidence, that the defendant was armed with a dangerous instrument during the commission of the offense.   That evidence provided a sufficient basis for the assessment of 30 points under risk factor one, notwithstanding that the defendant was acquitted at trial of the counts alleging that he possessed a weapon, which establishes only that the jury did not find all elements of those offenses to have been proved beyond a reasonable doubt, a more rigorous standard of proof than the clear and convincing evidence standard (see People v. Vasquez, 49 AD3d 1282, 1284;  People v. Powell, 27 Misc.3d 1212[A], 2010 N.Y. Slip Op 50719[U] ).

The defendant's remaining contention is without merit.

COVELLO, J.P., LOTT, ROMAN and MILLER, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court