People v. Belile

• Decision Date: 11 July 2013
• Parties: The PEOPLE of the State of New York, Respondent, v. Joseph J. BELILE, Appellant.
• Court: New York Supreme Court — Appellate Division

108 A.D.3d 890
969 N.Y.S.2d 228
2013 N.Y. Slip Op. 05257

The PEOPLE of the State of New York, Respondent,
v.
Joseph J. BELILE, Appellant.

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

July 11, 2013.

[969 N.Y.S.2d 229]

John A. Cirando, Syracuse, for appellant.

Nicole M. Duve, District Attorney, Canton (Jonathan L. Becker of counsel), for respondent.

Before: PETERS, P.J., ROSE, STEIN and GARRY, JJ.

GARRY, J.

[108 A.D.3d 890]Appeal from an order of the County Court of St. Lawrence County (Richards, J.), entered November 28, 2011, which classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act.

In April 2008, defendant pleaded guilty to rape in the third degree stemming from his sexual conduct with a 14–year–old girl, and he was thereafter sentenced as a second felony offender to a prison term of 2 to 4 years. In preparation for his release from prison, the Board of Examiners of Sex Offenders recommended, as relevant here, that defendant be classified as a risk level III sex offender pursuant to the Sex Offender Registration Act ( see Correction Law art 6–C). Following a hearing, County Court classified defendant as a risk level III sex offender and denied his request for a downward departure. Defendant appeals and we affirm.

The People are required to establish the risk level classification by clear and convincing evidence, and may use reliable hearsay—such as the presentence investigation report, a victim statement, and the case summary—to meet their burden ( see People v. Madera, 100 A.D.3d 1111, 1112, 953 N.Y.S.2d 385 [2012];People v. Good, 88 A.D.3d 1037, 1037, 930 N.Y.S.2d 495 [2011],lv. denied18 N.Y.3d 802, 2011 WL 6350548 [2011] ). Here, we reject defendant's contention that he was improperly assessed 15 points for drug use, as points may be assessed when “ ‘an offender has a substance abuse history or was abusing drugs and or alcohol at the time of the offense’ ” ( People v. Rhodehouse, 77 A.D.3d 1032, 1033, 908 N.Y.S.2d 769 [2010],lv. denied[108 A.D.3d 891]16 N.Y.3d 701, 2011 WL 32505 [2011], quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 15 [2006]; see People v. Clavette, 96 A.D.3d 1178, 1179, 946 N.Y.S.2d 310 [2012],lv. denied20 N.Y.3d 851, 2012 WL 5845583 [2012] ). In her statement, the victim recounted that defendant had provided and smoked marihuana with her on multiple occasions, including the day of their last sexual encounter, and defendant...