PEOPLE v. CHIU (2014)

Appeal by the defendant from an order of the County Court, Nassau County (O'Brien, J.), entered November 28, 2011, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6–C.

ORDERED that the order is reversed, on the law, without costs or disbursements, and the defendant is designated a level one sex offender.

The People bear of the burden of establishing, by clear and convincing evidence, the facts supporting the assessment of points under the Guidelines issued by the Board of Examiners of Sex Offenders under New York's Sex Offender Registration Act (hereinafter SORA) (see Correction Law § 168, et seq.; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5 [2006]; People v. Green, 112 AD3d 801, 801; People v. Harris, 100 AD3d 727, 727; People v. Thompson, 95 AD3d 977, 977). Here, the County Court erred in assessing the defendant 10 points under risk factor 12 (Acceptance of Responsibility). The defendant pleaded guilty, admitted his guilt, appeared remorseful when interviewed in connection with the preparation of a presentence report, and apologized to the victim. There is no evidence that he subsequently denied or tried to minimize his guilt (cf. People v. Noriega, 26 AD3d 767). In context, his description of how his relationship with the underage victim commenced was not an attempt to shift blame or minimize his guilt (cf. People v. Lerch, 66 AD3d 1088, 1088). Accordingly, it did not amount to clear and convincing evidence supporting the assessment of points under this risk factor. With the subtraction of the points assessed under this factor, the defendant was presumptively a level one offender. Accordingly, the defendant should have been designated a level one sex offender under SORA (see Correction Law § 168–d[3] ).

In light of our determination, we need not reach the defendant's remaining contentions.