People v Eaton (2010 NY Slip Op 50752(U))

People v Eaton (James)

2010 NY Slip Op 50752(U) [27 Misc 3d 135(A)]

Decided on April 21, 2010

Appellate Term, Second Department

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

This opinion is uncorrected and will not be published in the printed Official Reports.

The People of the State of New York, Respondent,

against

James Eaton, Appellant.

Appeal from an order of the City Court of Mount Vernon, Westchester County (Brenda Dowery-Rodriguez, J.), entered February 4, 2009. The order, after a hearing, designated defendant a level three sex offender pursuant to Correction Law article 6-C.

Defendant appeals from an order determining that he is a level three sex offender pursuant to the Sex Offender Registration Act (SORA) (Correction Law § 168 et seq.).

We find that the People presented clear and convincing evidence at the SORA hearing establishing defendant's use of physical force to overcome the 13-year-old victim by lying on top of the boy during the sexual act (see Penal Law § 130.00 [8] [a]; People v Cobb, 188 AD2d 308 [1992]; People v Cook, 186 AD2d 879 [1992]). Consequently, contrary to defendant's contention, the 10 points assessed under risk factor one should not be deducted from the 110 points assessed against defendant in the risk assessment instrument.

Defendant contends that he did not establish a relationship with the 13-year-old boy for the purpose of victimization and, thus, the 20-point assessment under risk factor seven should be deducted from the total points assessed against him. We also reject this contention. The City Court's determination that defendant had lied about his age to the mother of the 13-year-old boy for the purpose of victimization was based upon clear and convincing evidence (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 12 [1977 ed]; People v Tejada, 51 AD3d 472 [2008]).

Additionally, we find that the People presented clear and convincing evidence establishing that defendant did not accept responsibility for the crime. While defendant testified at the SORA hearing that he was remorseful and accepted responsibility for the crime, we defer [*2]to the hearing court's contrary credibility determination (see People v Longtin, 54 AD3d 1110 [2008]; People v Dubuque, 35 AD3d 1011 [2006]).

Accordingly, the City Court's order designating defendant a level three sex offender is affirmed.