People v. Kost

• Decision Date: 01 March 2011
• Citation: 82 A.D.3d 729,917 N.Y.S.2d 916
• Parties: PEOPLE of State of New York, respondent, v. David KOST, appellant.
• Court: New York Supreme Court — Appellate Division

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

PEOPLE of State of New York, respondent,
v.
David KOST, appellant.

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

March 1, 2011.

Robert C. Mitchell, Riverhead, N.Y. (James H. Miller III, of counsel), for appellant.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Marion M. Tang of counsel), for respondent.

Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), dated September 22, 2009, which, after a hearing, designated him a sexually violent offender and a level three sex offender pursuant to Correction Law article 6-C.

ORDERED that the order is affirmed, without costs or disbursements.

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

917 N.Y.S.2d 917

to the defendant's contention, he was properly assessed 30 points under risk factor one 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 ed.] ). 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 A.D.3d 681, 914 N.Y.S.2d 671; see Correction Law § 168-n[3]; People v. Hewitt, 73 A.D.3d 880, 900 N.Y.S.2d 438). 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 N.Y.3d 563, 573-574, 883 N.Y.S.2d 154, 910 N.E.2d 983; People v. Copeland, 79 A.D.3d 716, 911 N.Y.S.2d 918, lv. denied --- N.Y.3d ----, 2011 N.Y. Slip Op. 64715, 2011 WL 589695 [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 one, 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...