Appeal by the defendant from an order of Supreme Court, Nassau County (St. George, J.), dated February 24, 2011, which, after a hearing to redetermine his sex offender risk level pursuant to the stipulation of settlement in Doe v Pataki (3 F Supp 2d 456 [1998]), designated him a level two sex offender pursuant to Correction Law article 6-C.
Ordered that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for a new hearing and determination in accordance herewith.
In 1994, the defendant was convicted of sexual abuse in the first degree, upon his plea of guilty, in full satisfaction of an information charging him with rape in the first degree, sexual abuse in the first degree, and incest. During his plea allocution, the defendant admitted that on March 21, 1992, he grabbed his teenage daughter’s breasts and that he did so for sexual gratification, thereby establishing the elements of sexual abuse in the first degree (see Penal Law § 130.65). The defendant was sentenced to time served plus five years of probation.
In approximately 2006, the defendant’s daughter recanted her allegations that her father had abused her. In 2011, the defendant moved to vacate his conviction pursuant to CPL 440.10, relying on affidavits from the victim in which she claimed that she had fabricated the allegations against her father which led to his conviction. In an order dated March 31, 2011, the Supreme Court denied the defendant’s CPL 440.10 motion, and a Justice of this Court denied his application for leave to appeal from that order.
The Supreme Court erred in precluding the defendant from offering into evidence affidavits from his daughter recanting the underlying allegations of sexual abuse, and denying the defendant’s motion in limine to permit his daughter to testify at the SORA hearing. At a SORA hearing, “[t]he court shall allow the sex offender to appear and be heard” (Correction Law § 168-n [3]). The People bear of the burden of establishing, by clear and convincing evidence, the facts supporting the assessment of points under the Guidelines issued by the Board of Examiners of Sex Offenders under the Sex Offender Registration Act (see Correction Law art 6-C [hereinafter SORA]; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5 [2006]). The SORA court “shall review any victim’s statement and any relevant materials and evidence submitted by the sex offender and the district attorney and the recommendation and any materials submitted by the board, and may consider reliable hearsay evidence submitted by either party, provided that it is relevant to the determinations” (Correction Law § 168-n [3]). Further, “[f]acts previously proven at trial or elicited at the time of entry of a plea of guilty shall be deemed established by clear and convincing evidence and shall not be
The defendant’s remaining contentions are without merit or have been rendered academic in light of our determination. Dillon, J.P, Sgroi, Cohen and Miller, JJ., concur.