                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: January 22, 2015                   516629
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

JOHN M. TUBBS,
                    Appellant.
________________________________


Calendar Date:   November 13, 2014

Before:   Peters, P.J., Lahtinen, Garry, Rose and Egan Jr., JJ.

                             __________


     Teresa C. Mulliken, Harpersfield, for appellant.

      Richard D. Northrup Jr., District Attorney, Delhi (John L.
Hubbard of counsel), for respondent.

                             __________


Garry, J.

      Appeal from an order of the County Court of Delaware County
(Lambert, J.), entered February 26, 2013, which classified
defendant as a risk level III sex offender pursuant to the Sex
Offender Registration Act.

      Defendant pleaded guilty to attempted criminal sexual act
in the second degree and was sentenced pursuant to the agreement
to a prison term of 1½ years and 10 years of postrelease
supervision. Thereafter, the Board of Examiners of Sex Offenders
submitted a risk assessment instrument and case summary to County
Court pursuant to the Sex Offender Registration Act (see
Correction Law art 6-C [hereinafter SORA]) that presumptively
classified defendant as a risk level III sex offender, with no
departure recommended. In the course of a brief hearing, County
                                -2-                516629

Court subtracted points assessed under one of the factors and
added points for another, ultimately also resulting in a risk
level III classification. Defendant appeals.

      First considering the specific risk factors challenged upon
appeal, we find that County Court's addition of 20 points under
risk factor 3 for two victims was not supported by the requisite
standard of clear and convincing evidence (see Correction Law
§ 168-n [3]; People v Bateman, 59 AD3d 788, 789 [2009]). The
court assessed these points based upon the People's assertion
that defendant had been charged with crimes involving two
victims. Defendant argues that his underlying guilty plea
involved only one victim. It is well established, and the court
properly held, that determining the number of victims for
purposes of SORA is not limited to the crime of conviction, but
may be based upon other reliable sources, specifically including
a defendant's admissions (see People v Callan, 62 AD3d 1218, 1219
[2009]; Sex Offender Registration Act: Risk Assessment Guidelines
and Commentary, at 5 [2006]). Here, the preplea investigation
report included defendant's admission that, at an unspecified
time several years earlier, he had approached another potential
victim requesting that she engage in a sexual act.1 However, the
admission is quite limited, as defendant also stated that this
potential victim refused his request, and that nothing further
occurred. There is no evidence of any nature that could support
a finding of any sexual conduct or contact with a second victim
(see Penal Law § 130.00 [3], [10]). The People failed to
supplement defendant's limited admission with any proof
whatsoever from the alleged second victim (compare People v
Radage, 98 AD3d 1194, 1194 [2012], lv denied 20 NY3d 855 [2012];
People v Ramirez, 53 AD3d 990, 990 [2008], lv denied 11 NY3d 710
[2008]). Thus, the record does not contain clear and convincing
evidence supporting the court's determination as to a second
victim, and 20 points should not have been scored.

        Defendant was correctly assessed 10 points on risk factor 8


    1
        The time periods referenced in defendant's admission are
inconsistent with the indictment, which did not charge defendant
with any crimes occurring before 2011.
                              -3-                516629

for being under the age of 20 when he committed his first act of
sexual misconduct, as – contrary to his contention – the current
offense is properly included in this determination (see People v
Filkins, 107 AD3d 1069, 1070 [2013]; Sex Offender Registration
Act: Risk Assessment Guidelines and Commentary, at 13). As for
risk factor 12, defendant was correctly assessed 10 points for
failing to accept responsibility. Initially, upon his arrest and
interview with the Probation Department, defendant admitted that
he had repeatedly molested the victim and had approached the
second individual with a sexual request. However, he later
repudiated these statements, claiming that the accusations were
false and that he had pleaded guilty only because his former
defense counsel had advised him to do so. These later statements
constituted clear and convincing evidence that he failed to
accept responsibility for his conduct (see People v Shackelton,
117 AD3d 1283, 1284 [2014]; People v Carman, 33 AD3d 1145, 1146
[2006]).

      Defendant's claim that the manner in which the hearing was
conducted violated his due process rights was unpreserved; in any
event, the requisite standards were met (see People v Brooks, 308
AD2d 99, 103 [2003], lv denied 1 NY3d 502 [2003]; Doe v Pataki, 3
F Supp 2d 456, 471-472 [SD NY 1998]). Defendant's argument that
County Court failed to consider mitigating evidence that would
have warranted a lower risk level was also unpreserved. We note
that the modification required by our finding above requires a
change in assessment from 120 points, with a corresponding risk
level III designation, to an assessment of 100 points, with a
corresponding risk level II designation.

     Peters, P.J., Lahtinen, Rose and Egan Jr., JJ., concur.
                              -4-                  516629

      ORDERED that the order is reversed, on the law, without
costs, and defendant is classified as a risk level II sex
offender under the Sex Offender Registration Act.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
