Opinion
10012 Ind. 2907/09
10-08-2019
The PEOPLE of the State of New York, Respondent, v. Ruben SANDOVAL, Defendant–Appellant.
Janet E. Sabel, The Legal Aid Society, New York (Adrienne M. Gantt of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Jennifer L. Gray of counsel), for respondent.
Janet E. Sabel, The Legal Aid Society, New York (Adrienne M. Gantt of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Jennifer L. Gray of counsel), for respondent.
Friedman, J.P., Sweeny, Richter, Mazzarelli, Webber, JJ.
Order, Supreme Court, Bronx County (Efrain Alvarado, J.), entered on or about May 13, 2016, which adjudicated defendant a level three sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art. 6–C), unanimously affirmed, without costs.
The court properly assessed 15 points for a history of drug or alcohol abuse. Defendant's statements to correction officials that he was under the influence of the alcohol and marijuana at the time of the offense, and that he abused those substances, which led him to be referred to a substance abuse program, constituted clear and convincing evidence supported a finding of drug and alcohol abuse (see People v. Palmer, 20 N.Y.3d 373, 378–379, 960 N.Y.S.2d 719, 984 N.E.2d 917 [2013] ; People v. Van Phu Bui, 156 A.D.3d 448, 64 N.Y.S.3d 534 [1st Dept. 2017] ).
The court properly assessed 10 points for unsatisfactory conduct while confined. Defendant incurred a tier II and two tier III disciplinary violations during his five years of incarceration, and one of the tier III violations was incurred less than four months before the Board's assessment. In this case, the seriousness, rather than the number, of the infractions warranted the point assessment (see People v. Mabee, 69 A.D.3d 820, 821, 893 N.Y.S.2d 585 [2d Dept. 2010] [single tier III], lv denied 15 N.Y.3d 703, 2010 WL 2572036 [2010] ; People v. Chabrier, 38 A.D.3d 355, 830 N.Y.S.2d 898 [1st Dept. 2007] [same], lv denied 9 N.Y.3d 801, 840 N.Y.S.2d 567, 872 N.E.2d 253 [2007] ).