People v. Kost

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 1 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]). 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, 682 [2011]; see Correction Law § 168-n [3]; People v Hewitt, 73 AD3d 880 [2010]). 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 [2009]; People v Copeland, 79 AD3d 716 [2010], lv denied 16 NY3d 705 [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 1, 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 [2008]; People v Powell, 27 Misc 3d 1212[A], 2010 NY Slip Op 50719[U] [2010]). The defendant’s remaining contention is without merit. Covello, J.E, Lott, Roman and Miller, JJ., concur.