

People v Graves (2014 NY Slip Op 07137)





People v Graves


2014 NY Slip Op 07137


Decided on October 22, 2014


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on October 22, 2014
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

REINALDO E. RIVERA, J.P.
THOMAS A. DICKERSON
SHERI S. ROMAN
COLLEEN D. DUFFY, JJ.


2013-08496

[*1]People of State of New York, respondent,
vNisean Graves, appellant.


Richard L. Herzfeld, New York, N.Y., for appellant.
Janet DiFiore, District Attorney, White Plains, N.Y. (Laurie Sapakoff and Richard Longworth Hecht of counsel), for respondent.

DECISION & ORDER
Appeal by the defendant from an order of the County Court, Westchester County (Cacace, J.), dated July 8, 2013, which, after a hearing, designated him a level three sexually violent offender pursuant to Correction Law article 6-C.
ORDERED that the order is affirmed, without costs or disbursements.
In determining a defendant's risk level pursuant to the Sex Offender Registration Act (see Correction Law art 6-C), the People bear the burden of establishing the facts supporting the determination sought by clear and convincing evidence (see Correction Law § 168-n[3]; People v Mingo, 12 NY3d 563, 571; People v King, 80 AD3d 681, 682).
Contrary to the defendant's contention, the assessment of 10 points under risk factor 13 for unsatisfactory conduct while confined was supported by clear and convincing evidence (see People v Perez, 115 AD3d 919; People v Watson, 109 AD3d 463, 463-464). The defendant's unsatisfactory conduct during his incarceration was established by his inmate disciplinary history report, which revealed that he committed seven Tier II disciplinary violations (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 16 [2006]). Accordingly, the County Court properly designated the defendant a level three sexually violent offender.
RIVERA, J.P., DICKERSON, ROMAN and DUFFY, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


