Opinion
2017–05443
08-21-2019
PEOPLE of State of New York, Respondent, v. Randy ADKINSON, Appellant.
Janet E. Sabel, New York, N.Y. (Justine M. Luongo and Ronald Alfano of counsel), for appellant. John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, William H. Branigan, and Rachel N. Houle of counsel), for respondent.
Janet E. Sabel, New York, N.Y. (Justine M. Luongo and Ronald Alfano of counsel), for appellant.
John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, William H. Branigan, and Rachel N. Houle of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., MARK C. DILLON, JOSEPH J. MALTESE, HECTOR D. LASALLE, JJ.
DECISION & ORDER
ORDERED that order is affirmed, without costs or disbursements.
The defendant challenges his designation as a level three sex offender pursuant to the Sex Offender Registration Act (see Correction Law art 6–C; hereinafter SORA) based upon his convictions, upon a jury verdict, of, inter alia, sodomy in the first degree and sexual abuse in the first degree.
Contrary to the defendant's contention, he was properly assessed points under risk factor 11 for a history of alcohol abuse. In establishing an offender's appropriate risk level under SORA, "[t]he People ‘bear the burden of proving the facts supporting the determinations’ by clear and convincing evidence" ( People v. Pettigrew , 14 N.Y.3d 406, 408, 901 N.Y.S.2d 569, 927 N.E.2d 1053, quoting Correction Law § 168–n[3] ; see People v. Mingo , 12 N.Y.3d 563, 571, 883 N.Y.S.2d 154, 910 N.E.2d 983 ). Here, the People met that burden as to risk factor 11, through evidence that defense counsel asserted at the sentencing proceeding for the subject convictions that the defendant had "a drinking problem," and the facts that the defendant scored in the "alcoholic" range on the Michigan Alcohol Screening Test, was referred for alcohol abuse treatment in prison, and was previously convicted of driving while ability impaired by alcohol (see People v. Lowery , 140 A.D.3d 1141, 1142, 35 N.Y.S.3d 684 ; People v. Zavala , 114 A.D.3d 653, 654, 979 N.Y.S.2d 660 ). Further, the Supreme Court did not improvidently exercise its discretion in assessing points under this risk factor despite the defendant's abstinence from alcohol during his incarceration (see People v. Moultrie , 147 A.D.3d 800, 801, 45 N.Y.S.3d 590 ).
Based on the points assessed, we agree with the Supreme Court's designation of the defendant as a level three sex offender.
SCHEINKMAN, P.J., DILLON, MALTESE and LASALLE, JJ., concur.