Opinion
2012-10-2
The PEOPLE of the State of New York, Respondent, v. Kyle BIRCH, Defendant–Appellant.
Steven Banks, The Legal Aid Society, New York (Nancy E. Little of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Martin J. Foncello of counsel), for respondent.
Steven Banks, The Legal Aid Society, New York (Nancy E. Little of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Martin J. Foncello of counsel), for respondent.
FRIEDMAN, J.P., ACOSTA, RENWICK, RICHTER, ABDUS–SALAAM, JJ.
Order, Supreme Court, New York County (Juan M. Merchan, J.), entered on or about January 19, 2011, which adjudicated defendant a level three sexually violent offender under the Sex Offender Registration Act (Correction Law art. 6–C), unanimously affirmed, without costs.
The court properly assessed 15 points under the risk factor for drug or alcohol abuse, because defendant's crimes were committed while under the influence of drugs and alcohol, and the evidence of such use was not excessively remote. Defendant's “abstinence,” while incarcerated, from using substances that are prohibited in prison was insufficient to predict his postrelease behavior ( see People v. Gonzalez, 48 A.D.3d 284, 285, 852 N.Y.S.2d 71 [2008],lv. denied10 N.Y.3d 711, 860 N.Y.S.2d 483, 890 N.E.2d 246 [2008] ).
The court properly assessed 20 points under the risk factor for unsatisfactory conduct, including sexual misconduct, while confined. Defendant's prison disciplinary record provided clear and convincing evidence that he repeatedly engaged in lewd behavior directed at female personnel.
Regardless of whether points should have been assessed under the risk factor for failure to accept responsibility, defendant would still be a level three offender, and we find no basis for a discretionary downward departure to level two ( see People v. Pettigrew, 14 N.Y.3d 406, 409, 901 N.Y.S.2d 569, 927 N.E.2d 1053 [2010] ).