People v. Deming

• Citation: 64 N.Y.S.3d 748,155 A.D.3d 1262
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael J. DEMING, Appellant.
• Decision Date: 16 November 2017
• Court: New York Supreme Court Appellate Division

155 A.D.3d 1262
64 N.Y.S.3d 748

The PEOPLE of the State of New York, Respondent,
v.
Michael J. DEMING, Appellant.

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

Nov. 16, 2017.

64 N.Y.S.3d 749

Susan Patnode, Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), for appellant.

64 N.Y.S.3d 750

Jason M. Carusone, Acting District Attorney, Lake George (Benjamin R. Smith of counsel), for respondent.

Before: GARRY, J.P., EGAN JR., ROSE, MULVEY and RUMSEY, JJ.

GARRY, J.P.

155 A.D.3d 1262

In full satisfaction of a multicount indictment, defendant pleaded guilty to one count of sexual abuse in the first degree (involving an 11–year–old girl) and one count of sexual abuse in the second degree (involving a 13–year–old girl) and was sentenced to a prison term of three years followed by five years of postrelease supervision. In anticipation of defendant's release from prison, the Board of Examiners of Sex Offenders prepared a risk assessment instrument in accordance with the Sex Offender Registration Act (see Correction Law art 6–C) that presumptively classified defendant as a risk level three sex offender (130 points). Defendant initially waived but ultimately was granted a hearing, at the conclusion of which County Court reduced the number of points awarded under risk factor 2 (sexual contact with victim) from 25 points to 10 points—resulting in a total score of 115 points. County Court thereafter issued an order classifying defendant as a risk level three sex offender, prompting this appeal.

Defendant initially contends that County Court erred in relying upon the victims' respective hearsay statements to assess points under risk factors 2 and 6 in the first instance and, further, was inconsistent in its subsequent use thereof. We disagree. The case law makes clear that "[t]he People may use reliable hearsay, including case summaries and victim statements, to establish the appropriateness of a point assessment" ( People v. Smith, 128 A.D.3d 1189, 1189, 9 N.Y.S.3d 462 [2015] ; see People v. Mingo, 12 N.Y.3d 563, 571–572, 883 N.Y.S.2d 154, 910 N.E.2d 983 [2009] ;

155 A.D.3d 1263

People v. Snay, 122 A.D.3d 1012, 1013, 995 N.Y.S.2d 422 [2014], lv. denied 24 N.Y.3d 916, 2015 WL 688261 [2015] ). As nothing in the record suggests that the victims' statements were "equivocal," "inconsistent" or otherwise "dubious" ( People v. Willette, 67 A.D.3d 1259, 1260, 889 N.Y.S.2d 299 [2009] [internal quotation marks and citation omitted], lv. denied 14 N.Y.3d 704, 2010 WL 606359 [2010] ), we find no error in County Court's use of such statements.

Nor are we persuaded that County Court inconsistently credited one victim's statement as to the...