People v. Shkreli

Appeal by the defendant from an order of the County Court, Westchester County (Cacace, J.), entered October 11, 2012, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C. Ordered that the order is affirmed, without costs or disbursements. In establishing a defendant’s risk level pursuant to the Sex Offender Registration Act (Correction Law art 6-C [hereinafter SORA]), the People bear the burden of establishing the facts supporting the determinations sought by clear and convincing evidence (see Correction Law § 168-n [3]; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5 [2006]; People v Hewitt, 73 AD3d 880 [2010]; People v Chambers, 66 AD3d 748, 748 [2009]; People v Bright, 63 AD3d 1133, 1134 [2009]; People v Hardy, 42 AD3d 487 [2007]). “In assessing points, evidence may be derived from the defendant’s admissions, the victim’s statements, evaluative reports completed by the supervising probation officer, parole officer, or corrections counselor, case summaries prepared by the Board of Examiners of Sex Offenders ... or any other reliable source, including reliable hearsay” (People v Crandall, 90 AD3d 628, 629 [2011]; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5; People v Mabee, 69 AD3d 820, 820 [2010]; see also People v Mingo, 12 NY3d 563 [2009]). Here, contrary to the defendant’s contention, the County Court properly assessed 10 points against him under risk factor 12, for failure to accept responsibility for his conduct. The evidence before the County Court, including the contents of the pre-sentence report and a subsequent report from the Westchester County Department of Probation, demonstrated by clear and convincing evidence that the defendant had not accepted responsibility for his conduct (see People v Quinn, 99 AD3d 776, 777 [2012]; People v Thompson, 95 AD3d 977, 978 [2012]; People v Chandler, 80 AD3d 741, 742 [2011]). [729] Accordingly, the County Court properly assessed the defendant 10 points under risk factor 12, and properly designated the defendant a level three sex offender. Skelos, J.E, Dickerson, Leventhal and Miller, JJ., concur.