Opinion
No. 2008-00331.
October 13, 2009.
Appeal by the defendant, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Brennan, J.), dated January 9, 2008, as, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6-C.
Steven Banks, New York, N.Y. (Steven J. Miraglia of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy, Linda Breen of counsel), for respondent.
Before: Skelos, J.P., Covello, Leventhal and Roman, JJ., concur.
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
The People met their burden of establishing, by clear and convincing evidence, risk factors bearing sufficient total points to support a level two sex offender adjudication pursuant to Correction Law article 6-C. The defendant was properly assessed points for drug or alcohol abuse, as he admitted abusing drugs at the time he committed the offense ( see People v Carpenter, 60 AD3d 833; People v Morales, 33 AD3d 982, 983; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 15 [2006]). Moreover, the defendant allocuted that he was in possession of a BB-gun at the time of the commission of the crime and threatened to put a "cap" in the victim at the time of the incident if she did not comply with his command. Accordingly, the People presented clear and convincing evidence that the defendant was armed with a dangerous instrument at the time of the offense ( see People v Walker, 15 AD3d 692; cf. People v Swain, 46 AD3d 1157, 1158), and should be designated a presumptive risk level two.