PEOPLE v. GRAVES (2014)

Appeal by the defendant from an order of the County Court, Westchester County (Cacace, J.), dated July 8, 2013, which, after a hearing, designated him a level three sexually violent offender pursuant to Correction Law article 6–C.

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

In determining a defendant's risk level pursuant to the Sex Offender Registration Act (see Correction Law art 6–C), the People bear the burden of establishing the facts supporting the determination sought by clear and convincing evidence (see Correction Law § 168–n[3]; People v. Mingo, 12 N.Y.3d 563, 571, 883 N.Y.S.2d 154, 910 N.E.2d 983; People v. King, 80 A.D.3d 681, 682, 914 N.Y.S.2d 671).

Contrary to the defendant's contention, the assessment of 10 points under risk factor 13 for unsatisfactory conduct while confined was supported by clear and convincing evidence (see People v. Perez, 115 A.D.3d 919, 982 N.Y.S.2d 568; People v. Watson, 109 A.D.3d 463, 463–464, 970 N.Y.S.2d 92). The defendant's unsatisfactory conduct during his incarceration was established by his inmate disciplinary history report, which revealed that he committed seven Tier II disciplinary violations (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 16 [2006] ). Accordingly, the County Court properly designated the defendant a level three sexually violent offender.