People v. Hackel, 070220 NYAPP3, 2020-03704

• Opinion Judge: PRITZKER, J.
• Party Name: The People of the State of New York, Respondent, v. Matthew P. Hackel, Appellant.
• Attorney: Michael T. Baker, Public Defender, Binghamton (Alexander M. Keene of counsel), for appellant. Michael A. Korchak, District Attorney, Binghamton (Stephen D. Ferri of counsel), for respondent.
• Judge Panel: Before: Lynch, J.P., Devine, Aarons, Pritzker and Reynolds Fitzgerald, JJ. Lynch, J.P., Devine, Aarons and Reynolds Fitzgerald, JJ., concur.
• Case Date: July 02, 2020

The People of the State of New York, Respondent,

v.

Matthew P. Hackel, Appellant.

No. 2020-03704

Supreme Court of New York, Third Department

July 2, 2020

Calendar Date: June 9, 2020

Michael T. Baker, Public Defender, Binghamton (Alexander M. Keene of counsel), for appellant.

Michael A. Korchak, District Attorney, Binghamton (Stephen D. Ferri of counsel), for respondent.

Before: Lynch, J.P., Devine, Aarons, Pritzker and Reynolds Fitzgerald, JJ.

PRITZKER, J.

Appeal from an order of the County Court of Broome County (Dooley, J.), entered February 28, 2019, which classified defendant as a risk level three sex offender pursuant to the Sex Offender Registration Act.

Defendant pleaded guilty to the reduced charge of attempted sexual abuse in the first degree and was sentenced to 2½ years in prison followed by five years of postrelease supervision. In anticipation of his release, 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). At the ensuing hearing, the People adopted the Board's risk assessment, and defendant challenged certain of the points assessed and sought a downward departure from the presumptive risk level classification. County Court classified defendant as a risk level three sex offender with a sexually violent offender designation and denied his request for a downward departure. Defendant appeals.

Defendant initially contends that he improperly was assessed points under risk factors 12 (acceptance of responsibility) and 13 (conduct while confined). We disagree. "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" (People v Belile, 108 A.D.3d 890, 890 [2013] [citations omitted], lv denied 22 N.Y.3d 853 [2013]; see People v George, 177 A.D.3d 1045, 1045 [2019], lv denied 35 N.Y.3d 901 [2020]; People v Liddle, 159 A.D.3d 1286, 1286 [2018], lv denied 32 N.Y.3d 905 [2018]).

With respect to risk factor 12, defendant challenges the 15 points imposed under the subcategory entitled "[n]ot accepted responsibility/refused or expelled from treatment." In this regard, although the case summary indeed indicates that defendant was...