People v. Conway

47 A.D.3d 492, 850 N.Y.S.2d 67

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 17, 2008
• Status: Published

Opinion

Order, Supreme Court, New York County (Renee A. White, J.), entered on or about April 18, 2006, which adjudicated defendant a level three sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The People met their burden of establishing, by clear and convincing evidence, risk factors bearing sufficient total points to support a level three sex offender adjudication. The 15 point risk factor of drug or alcohol abuse was established by reliable hearsay (see People v Port, 18 AD3d 23 [2005], Iv denied 4 NY3d 885 [2005]), including the felony complaint (see People v Moore, 16 AD3d 190 [2005], lv denied 4 NY3d 889 [2005]) stating that a vial of crack cocaine was recovered from defendant at the time of his arrest (as to which there was no claim that it was not for defendant’s own use), the risk assessment instrument, the record of defendant’s recent history of marijuana sales and the “report on convicted prisoner” prepared by the prosecutor just after sentencing (cf. People v Hines, 24 AD3d 524 [2005], lv denied 6 NY3d 712 [2006] [probation report and case summary held reliable hearsay]). In addition, at the classification hearing it was undisputed that the grand jury testimony showed defendant had been drinking at the time of the underlying sex crime. Defendant failed to demonstrate, by clear and convincing evidence, special circumstances warranting a downward departure (see People v Guaman, 8 AD3d 545 [2004]). Concur—Mazzarelli, J.E, Andrias, Catterson and McGuire, JJ.