People v Harden

People v Harden 2009 NY Slip Op 01845 [60 AD3d 486] March 12, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 6, 2009

The People of the State of New York, Respondent,
v
Major Harden, Appellant.

—[*1] Steven Banks, The Legal Aid Society, New York (Nancy E. Little of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Patrick J. Hynes of counsel), for respondent.

Order, Supreme Court, New York County (Gregory Carro, J.), entered on or about October 22, 2007, which adjudicated defendant a level three sex offender under the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The People met their burden of establishing, by clear and convincing evidence, risk factors bearing a sufficient total point score to support a level three adjudication. The risk factor for deviant sexual intercourse was established by grand jury testimony that was corroborated by a laboratory report. We conclude that this evidence was sufficiently reliable to meet the clear and convincing standard notwithstanding the presence of some inconsistencies. The court also properly assessed points under the factor for drug abuse based on defendant's own admission, coupled with his criminal history (see People v Reyes, 48 AD3d 267 [2008]), and assessed an appropriate number of points under the factor for lack of supervised release, although this was a matter beyond defendant's control (see People v Lewis, 37 AD3d 689, 690 [2007], lv denied 8 NY3d 814 [2007]).

Motion seeking leave to strike portions of brief denied. Concur—Andrias, J.P., Saxe, Acosta and Renwick, JJ.