Opinion
12-23-2016
Hunt & Baker, Hammondsport (Brenda Smith Aston of Counsel), for Defendant–Appellant. Brooks T. Baker, District Attorney, Bath (John C. Tunney of Counsel), for Respondent.
Hunt & Baker, Hammondsport (Brenda Smith Aston of Counsel), for Defendant–Appellant.
Brooks T. Baker, District Attorney, Bath (John C. Tunney of Counsel), for Respondent.
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, DEJOSEPH, AND SCUDDER, JJ.
MEMORANDUM: On appeal from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq. ), defendant contends that County Court erred in failing to grant a downward departure from his presumptive risk level. We reject that contention. "A departure from the presumptive risk level is warranted if there is ‘an aggravating or mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines' " (People v. Smith, 122 A.D.3d 1325, 1325, 995 N.Y.S.2d 890, quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [2006] ). Defendant failed to identify or establish the existence of any such mitigating factor (see People v. Lowery, 140 A.D.3d 1141, 1142, 35 N.Y.S.3d 684, lv. denied 28 N.Y.3d 903, 2016 WL 4999884 ; see generally People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ). Contrary to defendant's further contention, the court properly assessed 15 points under risk factor 11 for history of drug or alcohol abuse. Defendant's criminal history includes two prior alcohol-related convictions (see People v. Green, 104 A.D.3d 1222, 1222, 960 N.Y.S.2d 582, lv. denied 21 N.Y.3d 860, 2013 WL 3198003 ), and his purported abstinence while incarcerated and limited consumption of alcohol during the brief period following his release is not necessarily predictive of his future behavior (see People v. Jackson, 134 A.D.3d 1580, 1580–1581, 22 N.Y.S.3d 749 ; Green, 104 A.D.3d at 1223, 960 N.Y.S.2d 582 ). The court also properly assessed 10 points under risk factor 13 for unsatisfactory conduct while supervised because the People established that defendant violated the terms of his supervision by engaging in criminal conduct (see People v. Young, 108 A.D.3d 1232, 1233, 969 N.Y.S.2d 372, lv. denied 22 N.Y.3d 853, 2013 WL 5658386, rearg. denied 22 N.Y.3d 1036, 981 N.Y.S.2d 351, 4 N.E.3d 362 ; People v. Lowery, 93 A.D.3d 1269, 1270, 940 N.Y.S.2d 745, lv. denied 19 N.Y.3d 807, 2012 WL 2401529 ). Contrary to defendant's contention, the assessment of points under risk factor 11 and risk factor 13 did not constitute impermissible double counting, notwithstanding the fact that the unsatisfactory conduct while supervised was alcohol-related.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.