People v. Kost

Appellate Division of the Supreme Court of New York

People v. Kost

82 A.D.3d 729, 917 N.Y.2d 916

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 1, 2011

StatusPublished

Cited by19 cases

This text of 82 A.D.3d 729 (People v. Kost) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Kost, 82 A.D.3d 729, 917 N.Y.2d 916 (N.Y. Ct. App. 2011).

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Opinion

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.

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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.

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Bluebook (online)

82 A.D.3d 729, 917 N.Y.2d 916, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-kost-nyappdiv-2011.

Opinion

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