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Supreme Court, Appellate Division, Fourth Department, New York.

The PEOPLE of the State of New York, Respondent, v. Robert WARRIOR, Defendant-Appellant.

Decided: December 31, 2008

PRESENT:  CENTRA, J.P., PERADOTTO, GREEN, AND PINE, JJ. The Legal Aid Bureau of Buffalo, Inc., Buffalo (Nicholas T. Texido of Counsel), for Defendant-Appellant. Frank J. Clark, District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.

Defendant appeals from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act ( [SORA] Correction Law § 168 et seq.).   At the SORA hearing, the People sought that determination based upon defendant's score of 115 on the risk assessment instrument.   Upon our review of the record, we agree with defendant that the assessment of 20 points in the category “[n]umber of victims” is not supported by clear and convincing evidence.   Neither the People's Molineux notice alleging the existence of a second victim nor the oral assertions at the SORA hearing of the Assistant District Attorney who prepared that notice constitutes clear and convincing evidence, i.e., “evidence which makes it ‘highly probable’ that the alleged activity actually occurred” (People v. Dominie, 42 A.D.3d 589, 590, 838 N.Y.S.2d 730;  see generally People v. Gonzalez, 28 A.D.3d 1073, 1074, 814 N.Y.S.2d 834).   In light of defendant's denial of the allegations concerning the second victim and the absence of any proof substantiating Molineux notice or the Assistant District Attorney's oral assertions, we conclude that the hearsay evidence presented by the People “does not rise to the level of clear and convincing evidence” (People v. Arotin, 19 A.D.3d 845, 848, 796 N.Y.S.2d 743;  see Dominie, 42 A.D.3d at 591, 838 N.Y.S.2d 730;  People v. Brown, 7 A.D.3d 831, 832-833, 776 N.Y.S.2d 366).   Reducing the total risk factor score by 20 points results in a presumptive risk level classification of level two, and on the record before us there are no special circumstances to warrant a departure from that presumptive risk level (see Gonzalez, 28 A.D.3d at 1074, 814 N.Y.S.2d 834).   We therefore modify the order accordingly.

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by determining that defendant is a level two risk pursuant to the Sex Offender Registration Act and as modified the order is affirmed without costs.