Case Summary by Board of Examiners of Sex Offenders and Sworn Felony Complaint Constitute Clear and Convincing Evidence in a SORA Proceeding

The Second Department determined the case summary provided by the Board of Examiners of Sex Offenders and the sworn felony complaint provided clear and convincing evidence of continuing sexual misconduct against the victim:

In establishing a defendant’s risk level pursuant to the Sex Offender Registration Act (hereinafter SORA) (see Correction Law art 6-C), the People bear the burden of establishing, by clear and convincing evidence, the facts supporting the determinations sought (see Correction Law § 168-n[3]; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5 [2006]…). ” In assessing points, evidence may be derived from . . . the victim’s statements, evaluative reports completed by the supervising probation officer, parole officer, or corrections counselor, case summaries prepared by the Board of Examiners of Sex Offenders . . . or any other reliable source, including reliable hearsay'” … .

Here, the case summary and the sworn felony complaint constituted “reliable hearsay” (Correction Law § 168-n[3]…)  and provided clear and convincing evidence to warrant the assessment of 20 points under risk factor four, for engaging in a continuing course of sexual misconduct against the victim … .  People v Patronick, 2014 NY Slip Op 03816, 2nd Dept 5-28-14