This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 113
The People &c.,
            Respondent,
        v.
Dennis J. Sincerbeaux,
            Appellant.




          Mary P. Davison, for appellant.
          Bruce A. Rosekrans, for respondent.




DIFIORE, Chief Judge:
          In this Sex Offender Registration Act (SORA) appeal, we
are asked to decide whether the SORA court erred in assessing


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                                - 2 -                         No. 113

defendant points under risk factors 1, 5, and 9 and abused its
discretion in adjudicating defendant a risk level three sex
offender.   We conclude that the court did not err and did not
abuse its discretion.
                                 I.
            Defendant was convicted on his plea of guilty of incest
in the third degree (Penal Law § 255.25) for engaging in sexual
intercourse with a person he knew to be related to him over a
period of approximately one month in 2007.   He was sentenced to
six months' incarceration followed by ten years' probation.
            Prior to defendant's release, the Board of Examiners of
Sex Offenders prepared a risk assessment instrument (RAI) and
assessed defendant 115 points, making him a presumptive risk
level three.    The Board recommended that defendant be classified
as level three, concluding that a departure from the presumptive
risk level was not warranted.   As relevant here, the Board
assessed 10 points under risk factor 1 for use of forcible
compulsion in the current incest offense, 20 points under risk
factor 5 for the age of the victim being less than 16 in the
current incest offense, and 30 points under risk factor 9 for a
prior endangering the welfare of a child conviction under Penal
Law § 260.10.
            At the SORA hearing, defendant argued that it would be
inappropriate for the court to assess a collective 30 points
under risk factors 1 and 5 for forcible compulsion and age of the


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victim in the current incest offense.   Defendant argued that
these points were unwarranted because they were based on the
allegations of the victim and were not charged offenses.
Defendant also argued that he should only be assessed 5 points
for his prior endangering the welfare of a child conviction under
risk factor 9, and not 30 points as the Board had recommended,
because it was a misdemeanor that was not sexual in nature.
Defendant argued that if the 25 points he claimed were
overassessed under risk factor 9 were subtracted, defendant would
have received a score of 90 and been designated a level two sex
offender.   Additionally, defendant argued that without those 25
points under risk factor 9 and 30 points under risk factors 1 and
5, he would have received a score of 60 and been classified a
level one offender.
            The People "vigorously oppos[ed]" defendant's request
to be adjudicated a level one sex offender.   The People, relying
on the victim's statements, argued that clear and convincing
evidence had been presented to support the assessment of points
for forcible compulsion and age of the victim under risk factors
1 and 5, respectively.   The People further argued that it was
appropriate for the court to consider allegations made by the
victim of uncharged crimes such as these.   As to defendant's
requested point reduction related to the prior endangering the
welfare of a child conviction under risk factor 9, the People
argued that even if the court granted defendant's request, which


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would bring his points from 115 to 90 making him a presumptive
risk level two, an upward departure to level three would be
warranted given the victim's allegations of "numerous occasions
of forcible sexual intercourse."
          The SORA court agreed with the Board and the People and
assessed defendant a total of 115 points, a presumptive risk
level three.   The court in its written decision made factual
findings related to the risk factors defendant now challenges:
that defendant had a prior endangering the welfare of a child
conviction for an offense that involved an assault on his son and
was not sexual in nature, that the sexual contact between the
victim and defendant involved the use of forcible compulsion, and
that the victim was less than 16 when she was first subjected to
sexual contact with defendant.    The court also found that the
sexual contact between the victim and defendant involved multiple
acts of sexual intercourse, that the sexual contact between the
victim and defendant constituted a continuous course of conduct
that covered a period of many years, and that defendant had not
accepted responsibility for his conduct.1   Based on its factual
findings, the court declined to downwardly depart, finding that



     1
       With regard to defendant's failure to accept
responsibility, the pre-sentence report found that defendant
"presented himself as a victim, demonstrated no remorse and
accepted very little accountability for his actions." Moreover,
it found that defendant blamed the victim for his own conduct and
denied that his sexual intercourse with the victim fell within
the definition of "incest."

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"a departure from the presumptive Risk Level 3 is not
appropriate."
          The Appellate Division affirmed and found record
support for the SORA court to assess defendant points under risk
factors 1 and 5 for forcible compulsion and age of the victim in
relation to the current incest offense because the People had
"presented 'reliable hearsay evidence, in the form of the
victim's statement'" (121 AD3d 1577, 1577 [4th Dept 2014]
[internal citation omitted]).    The Appellate Division further
held that the SORA court did not abuse its discretion in
assessing defendant 30 points under risk factor 9 for the prior
endangering the welfare of a child conviction and classifying him
a level three sex offender.
          This Court granted defendant leave to appeal (24 NY3d
915 [2015]), and we now affirm.
                                  II.
          Correction Law § 168-n (3) requires the People to prove
facts to support defendant's SORA risk-level classification by
clear and convincing evidence.    As relevant here, the SORA Risk
Assessment Guidelines and Commentary (Guidelines) make clear
that, when assessing points related to the current offense, the
court is not limited to considering defendant's current
conviction -- here, incest in the third degree.    The court may
also assess points for clear and convincing evidence of other
criminal acts presented in admissions from the offender,


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statements from victims, and reports from probation officers,
parole officers, corrections counselors, or other reliable
sources (Sex Offender Registration Act: Risk Assessment
Guidelines and Commentary at 5 [2006] [hereinafter Guidelines]).
Moreover, we have held that sworn statements constitute reliable
hearsay evidence admissible in SORA proceedings to determine the
defendant's risk level, and that even unsworn statements of the
victim are admissible if there is a requisite indicia of
reliability (see People v Mingo, 12 NY3d 563, 567, 573, 576-577
[2009]).
           In relation to his current offense, the SORA court
properly assessed defendant 10 points under risk factor 1 for use
of forcible compulsion and 20 points under risk factor 5 for the
age of the victim being less than 16.   Neither force nor age is
an element of defendant's current incest conviction (see Penal
Law § 255.25).   However, the record contains clear and convincing
evidence supporting the assignment of points for both of these
risk factors in the form of a sworn statement from the victim.
Although victims' statements may be considered even if unsworn,
here, the victim's sworn statement complies with the requirements
for such statements set forth in Penal Law § 210.452 (see People


     2
       Penal Law § 210.45 provides that "[a] person is guilty of
making a punishable false written statement when he knowingly
makes a false statement, which he does not believe to be true, in
a written instrument bearing a legally authorized form notice to
the effect that false statements made therein are punishable.
Making a punishable false written statement is a class A

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                                 - 7 -                      No. 113
v Sullivan, 56 NY2d 378, 380 [1982]).    With respect to forcible
compulsion, in the sworn statement the victim declared that
defendant would take her out of her bedroom and force her to have
sexual intercourse with him.   She averred that when she refused
defendant would "hit" or "throw" her, noting that she had
received black eyes from his blows and had a scar on her right
knee from a time defendant threw her to the ground.    With respect
to her age being less than 16, in the sworn statement the victim
maintained that defendant first started forcing her to have
sexual intercourse with him when she was 13 years old.
Therefore, under the Guidelines and Mingo it was not error for
the SORA court to assess points under risk factor 1 for forcible
compulsion and risk factor 5 for the age of the victim being less
than 16.
           In relation to the assessment of points for defendant's
criminal history under risk factor 9, the Guidelines direct the
SORA court to assess defendant 30 points for a prior "violent
felony, a misdemeanor sex crime, or endangering the welfare of a
child" (Guidelines, factor 9).    Additionally, the Guidelines
provide that
           "[t]he Board decided to treat endangering the
           welfare of a child as if it were a sex crime
           because it generally involves sexual
           misconduct, especially when it is part of a
           plea bargained disposition. Where a review
           of the record indicates that there was no
           such misconduct, a departure may be


misdemeanor."

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                                - 8 -                         No. 113
            warranted"
(Guidelines at 14 [emphasis added]).    Plainly, pursuant to these
Guidelines the SORA court was required to assess 30 points for a
prior endangering the welfare of a child conviction without
regard to whether the underlying offense involved conduct that is
sexual in nature, subject to the court's authority to grant a
downward departure in the exercise of its discretion.3   Here,
there is no factual dispute that defendant had a prior
endangering the welfare of a child conviction.    Therefore, the
SORA court's assessment of 30 points under risk factor 9 was not
in error.    Thus, the only question of law that remains is
whether, due to the nonsexual nature of defendant's prior
endangering conviction, the court abused its discretion in
declining to downwardly depart from defendant's presumptive risk
level three.4
            As we recently stated, "[i]n determining whether to

     3
       Defendant's suggestion that the court should have
arbitrarily assessed 5 points, instead of 30 points, under risk
factor 9 is misguided, as it is in contravention of the
Guidelines. A court may depart from the presumptive risk level,
not from points that are properly assigned within a specific risk
factor. Furthermore, the People's apparent concession of error
as to the alleged overassessment of points under risk factor 9 in
their brief is not binding on this Court. The People never
advanced this erroneous legal argument before the SORA court, nor
did they raise it at the Appellate Division; accordingly, we need
not consider this newfound argument in reviewing the question of
law presented herein.
     4
       To the extent that defendant raises a constitutional due
process challenge to the Guidelines on appeal, such argument is
unpreserved.

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                               - 9 -                         No. 113
depart from a presumptive risk level, the hearing court weighs
the aggravating or mitigating factors alleged by the departure-
requesting party to assess whether, under the totality of the
circumstances, a departure is warranted" (People v Howard, ___
NY3d ___, 2016 NY Slip Op 03415 [2016], citing People v
Gillotti,23 NY3d 841, 861 [2014]).     Here, the only mitigating
factor defendant presented to the SORA court was that the prior
endangering the welfare of a child conviction was not sexual in
nature.   Although the SORA court considered this argument when
deciding whether to downwardly depart, it certainly was not
required to consider the mitigating factor in a vacuum without
considering any aggravating factors that would weigh against a
downward departure (see Guidelines at 4).     In this case, there
were numerous aggravating factors not adequately captured by the
RAI that countered defendant's argument for a downward departure.
Therefore, the SORA court did not abuse its discretion in
determining that the "totality of the circumstances" did not
warrant a downward departure because such a departure would have
resulted in an "under-assessment of the defendant's dangerousness
and risk of sexual recidivism" (People v Gillotti, 23 NY3d at
861).
           The aggravating factors included defendant's admission
before the SORA court that the prior endangering the welfare of a
child conviction arose from an allegation of "excessive corporal
punishment . . . involving striking his son with some kind of a


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                               - 10 -                         No. 113
stick and leaving a bruise."   Moreover, an excerpt from the
related child protective report contained in the record stated
that defendant beat his son with a two-by-four, resulting in a
physical injury of an approximately four by five inch large
purple bruise below the son's buttocks.    Additionally, as
described above, the victim's sworn statement indicated that she
experienced years of physical abuse as a result of her attempts
to refuse defendant's sexual advances.    Moreover, the victim
averred in her statement that defendant forced her to have
incestuous sexual intercourse with him seven to eight times per
month starting two months after she moved in with him until the
time she moved out, which was from when she was 13 years old
until she was 28 years old.    Thus, the victim declared that the
sexual intercourse spanned a period of over fifteen years.
Defendant pleaded guilty to one month of incestuous intercourse
and then admitted to probation in the presentence report to
having said intercourse with the victim for a period spanning
more than eight years, claiming self-servingly that the crimes
began when the victim was 18 or 19 years old -- a claim that was
not credited by the SORA court.   Lastly, the victim also reported
that, at the time her first child was born, she had not had
sexual intercourse with anyone except for defendant.
           Defendant's adjudicated risk level is meant to capture
his risk of reoffense and danger to the community (see Guidelines
at 2-3).   Given the enormity of defendant's uncharged sexual


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crimes, the facts of which were proven by clear and convincing
evidence and not fully accounted for in the RAI, the SORA court
did not abuse its discretion when it declined to downwardly
depart from the presumptive risk level three.   Defendant's focus
in isolation on his nonsexual prior endangering the welfare of a
child conviction as a mitigating factor ignores that the violent
nature of that prior offense5 and the gravity of the current
incest offense are both probative of defendant's risk of
reoffense.
          The order of the Appellate Division should be affirmed,
without costs.




     5
       Indeed, the allegations underlying the prior endangering
conviction mirror the elements of the violent felony of assault
in the second degree, which is assessed 30 points on the RAI
(Penal Law §§ 70.02 [1] [c], 120.05 [2]).

                             - 11 -
People v Dennis J. Sincerbeaux
No. 113




RIVERA, J.(dissenting):
     Defendant challenges his designation under New York's Sex
Offender Registration Act (SORA) as a level three risk to
reoffend on the ground, among others, that County Court
improperly accepted the Board's risk assessment score of 30
points under factor 9 based on a prior conviction that did not
involve sexual misconduct.   At the SORA hearing defendant
requested that his risk assessment reflect the nonsexual nature
of his prior offense, which he correctly identified as a
permissible ground for departure under the Sex Offender
Registration Act Risk Assessment Guidelines and Commentary
(Guidelines).1   County Court abused its discretion when it denied
this request without proper consideration of the ground
presented.   This error matters because if, as advocated by
defendant, County Court had assigned him a lower risk level, he
would be subject to somewhat less onerous SORA reporting

     1
      Contrary to the majority's suggestion (majority op. at 8 n
3), a departure by the court because of an overassessment of
defendant's risk under factor 9 would not have been arbitrary
but, rather, based specifically on a mitigating factor expressly
provided for in the Guidelines.

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                                - 2 -                        No. 113
requirements than a level three designation.2
     The Guidelines assign 30 points under risk factor 9 for a
prior conviction or adjudication of endangering the welfare of a
child, the offense at issue here, but only 5 points for a prior
criminal history absent felony or sex crime convictions or
adjudications (Guidelines at 3).   The Board of Examiners of Sex
Offenders (Board) in drafting the Guidelines
          "decided to treat endangering the welfare of
          a child as if it were a sex crime because it
          generally involves sexual misconduct,
          especially when it is part of a plea
          bargained disposition. Where a review of the
          record indicates that there was no such
          misconduct, a departure may be warranted"
(id. at 14 [emphasis added]).
     It is undisputed that defendant's conviction for endangering
the welfare of a child did not involve sexual misconduct.     The
question presented on this appeal is whether County Court
properly considered defendant's request to be assessed a lower
risk because his offense lacked a sexual component.   In support,
defendant argued to County Court that his case fell squarely
within the Guidelines and the Board's explicit proposed grounds


     2
      For example, while both level two and level three offenders
are required to register for life, a level two offender who does
not have a special designation has the opportunity to petition
for relief from the registration requirement after 30 years
(Correction Law § 168-o [1]; Correction Law § 168-h [2]). A
level three offender must verify the offender's address, in
person, every 90 days (Correction Law § 168-h [3]), and annually
update the offender's registry photograph, compared to every
three years for level one and two offenders (Correction Law §
168-f [b-2], [b-3]).

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                                - 3 -                         No. 113
for departure.3    County Court stated, "the fact that [the
offense] did not include conduct of a sexual nature, does not
preclude its consideration by the Court pursuant to the
guidelines."   This is an accurate statement of the Guidelines'
approach, but not responsive to defendant's argument.    Defendant
did not contend that County Court was without authority to
consider the conviction, only that the court should look to the
underlying fact that the offense did not involve sexual
misconduct, and then weigh that fact in its determination of
whether the offense comported with crimes scored at 5 versus 30
points and a departure warranted on that basis, as provided by
the Guidelines.4
     Whether, as the majority concludes, defendant could be
designated a level three offender based on his criminal history
is of no moment to the issue on appeal because that determination
should be made in the first instance by the SORA court (majority


     3
      Defendant failed to preserve his constitutional and
statutory challenge to the Board's treatment of his endangering
the welfare of a child conviction as if it was a sex crime.
Thus, whether the Board may automatically assess 30 points under
factor 9 without clear and convincing evidence of defendant's
sexual misconduct remains an open question. For purposes of my
analysis, I assume, without deciding, that the Board may lawfully
classify and score this offense in such a manner, while providing
for a departure from the risk level.
     4
      Notably, the People take the position on this appeal that
defendant should not have been assessed 30 points under factor 9.
They request that the case be remanded to the SORA court to
consider the People's upward modification on the original hearing
record or on a motion to reconsider defendant's risk assessment
based on his conduct after the SORA hearing.

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                                   - 4 -                           No. 113
op. at 8-9).     In my view, the record cannot be read, as
apparently the majority does, to establish that County Court gave
proper consideration to the Guidelines' instruction concerning
factor 9 and defendant's argument that his offense was nonsexual
in nature.   Therefore, I dissent and would reverse and remand for
the court's assessment of defendant's risk level in light of the
Guidelines and the facts of his case, and, if necessary, for a
determination on the People's request for an upward departure.
*   *   *    *     *   *   *   *    *      *   *   *   *   *   *     *   *
Order affirmed, without costs. Opinion by Chief Judge DiFiore.
Judges Abdus-Salaam, Stein and Garcia concur. Judge Rivera
dissents in an opinion in which Judge Pigott concurs. Judge
Fahey took no part.

Decided June 28, 2016




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