People v. Griest

EGAN JR., J.

Abbie Goldbas, Utica, for appellant.

Mark D. Suben, District Attorney, Cortland (Elizabeth McGrath of counsel), for respondent.

Opinion

EGAN JR., J.

Appeal from an order of the County Court of Cortland County (Campbell, J.), entered May 22, 2014, which classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act.

In 2006, defendant pleaded guilty to attempted rape in the first degree and was sentenced to a prison term of 10 years with five years of postrelease supervision. The underlying charges stemmed from allegations that he repeatedly had sexual intercourse with a 12–year–old female relative when he was 33 years old. In anticipation of defendant's release from prison, the Board of Examiners of Sex Offenders prepared a risk assessment instrument presumptively classifying him as a risk level III sex offender (130 points) and recommended against a departure. The People adopted this recommendation, and County Court thereafter classified defendant as a risk level III sex offender with a designation as a sexually violent offender (seeCorrection Law § 168–a[3], [7][b]). Defendant now appeals.

We affirm. Contrary to defendant's assertion, County Court did not err in imposing 15 points under risk factor 11 for drug or alcohol abuse. “An offender who has a substance abuse history or was abusing drugs and/or alcohol at the time of the offense may be assessed points” under factor 11 (People v. Harp,127 A.D.3d 1529, 1530, 7 N.Y.S.3d 717 [2015][internal quotation marks and citations omitted]; see

People v. Gallagher,129 A.D.3d 1252, 1253–1254, 11 N.Y.S.3d 712 [2015], lv. denied26 N.Y.3d 908, 2015 WL 5972484 [2015]; see also People v. Palmer,20 N.Y.3d 373, 377–378, 960 N.Y.S.2d 719, 984 N.E.2d 917 [2013]; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 15 [2006] ). Here, the assessment of points under risk factor 11 was supported by clear and convincing evidence in the record, including information in the case summary and presentence investigation report revealing defendant's extensive history of alcohol abuse (see People v. Gallagher,129 A.D.3d at 1254, 11 N.Y.S.3d 712; People v. Snay,122 A.D.3d 1012, 1013, 995 N.Y.S.2d 422 [2014], lv. denied24 N.Y.3d 916, 2015 WL 688261 [2015]; see alsoCorrection Law § 168–n [3] ). Defendant's participation in a substance abuse treatment program while incarcerated does not require a contrary conclusion (see People

v. Tumminia,112 A.D.3d 1002, 1003, 976 N.Y.S.2d 312, 976 N.Y.S.2d 312 [2013], lv. denied22 N.Y.3d 864, 2014 WL 1243637 [2014]; People v. Good,88 A.D.3d 1037, 1038, 930 N.Y.S.2d 495 [2011], lv. denied18 N.Y.3d 802, 2011 WL 6350548 [2011]), and “his recent history of abstinence while incarcerated is not necessarily predictive of his behavior when no longer under such supervision” (People v. Warren,42 A.D.3d 593, 594, 840 N.Y.S.2d 176 [2007], lv. denied9 N.Y.3d 810, 844 N.Y.S.2d 786, 876 N.E.2d 515 [2007]).

We are similarly unpersuaded by defendant's challenge to the assessment of 10 points under risk factor 13 for unsatisfactory conduct while confined. The case summary reflects that defendant was disciplined in 2013 for possessing pornography in a classroom setting, which resulted in a tier III violation. Thus, we find that defendant was properly assessed points under this risk factor (see People v. Correnti,126 A.D.3d 681, 681, 2 N.Y.S.3d 375 [2015]; People v. Williams,100 A.D.3d 610, 611, 953 N.Y.S.2d 298 [2012], lv. denied20 N.Y.3d 859, 2013 WL 518622 [2013]; People v. Thomas,59 A.D.3d 783, 785, 873 N.Y.S.2d 757 [2009]; see alsoSex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 16 [2006] ).

ORDERED that the order is affirmed, without costs.

GARRY, J.P., ROSEand CLARK, JJ., concur.