I respectfully dissent.
Initially, I find no abuse of discretion in County Court’s assessment of points for forcible compulsion based upon the victim’s grand jury testimony. In assessing a sex offender’s risk level, a trial court is not limited to the charge to which the defendant pleads guilty but it can also consider the circumstances of the underlying crime (see People v Lovelace, 39 AD3d 728 [2007]; People v Lesch, 38 AD3d 1129, 1129-1130 [2007], lv denied 8 NY3d 816 [2007]) and, as the majority sets forth, is permitted to review reliable hearsay evidence (see Correction Law § 168-n [3]), which includes grand jury testimony (see People v Kaminski, 38 AD3d 1127, 1128 [2007]). The victim’s sworn grand jury testimony supports the assignment of points to the category of forcible compulsion and, in my view, the reliability of that testimony is not undermined by any inconsistencies or additional allegations, in either her statement to the police or her victim impact statement. Notably, any statement by the victim describing the incident included the use of force.
Additionally, the prosecutor’s acknowledgment that he could not prove forcible compulsion at trial is not dispositive inasmuch as the standard of proof in a criminal trial—beyond a reasonable doubt—is more exacting than the clear and convincing standard needed to support a risk level assessment (see People v Lesch, supra at 1129-1130). Moreover, the record establishes that the prosecutor’s motion to dismiss the first count of the indictment—rape in the first degree, a class B violent felony— *592was necessary in order to effectuate a plea to the third count of the indictment—rape in the third degree, a class E nonviolent felony (see CPL 220.10 [5] [d] [ii]).
Under these circumstances, and finding no merit to defendant’s remaining challenges to the risk assessment classification, I would affirm County Court’s order designating defendant a risk level II sex offender.
Ordered that the order is reversed, on the law, without costs, and matter remitted to the County Court of St. Lawrence County for further proceedings not inconsistent with this Court’s decision.