Opinion
2016–11309
12-18-2019
PEOPLE of State of New York, Respondent, v. Daniel DELANCEY, Appellant.
Janet E. Sabel, New York, N.Y. (Ronald Alfano of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent.
Janet E. Sabel, New York, N.Y. (Ronald Alfano of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent.
MARK C. DILLON, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, LINDA CHRISTOPHER, JJ.
DECISION & ORDER ORDERED that order is affirmed, without costs or disbursements.
The defendant challenges his designation as a level two sex offender pursuant to the Sex Offender Registration Act (see Correction Law art 6–C; hereinafter SORA) following his conviction, upon a plea of guilty, of sexual abuse in the first degree ( Penal Law § 130.65 ). On appeal, the defendant challenges the assessment of points under risk factors 11 and 14.
We agree with the Supreme Court's assessment of 15 points under risk factor 11 for a history of alcohol abuse. In establishing an offender's appropriate risk level under SORA, "the People have ‘the burden of proving the facts supporting the determinations sought by clear and convincing evidence' " ( People v. Stapleton, 125 A.D.3d 951, 951, 5 N.Y.S.3d 160, quoting Correction Law § 168–n[3] ; see People v. Pettigrew, 14 N.Y.3d 406, 408, 901 N.Y.S.2d 569, 927 N.E.2d 1053 ; People v. Mingo, 12 N.Y.3d 563, 571, 883 N.Y.S.2d 154, 910 N.E.2d 983 ). Here, the People met their burden as to risk factor 11 through the defendant's admissions in the presentence report that he started drinking alcohol and smoking marijuana at age nine and has been in alcohol and substance abuse counseling since 1998 (see People v. Adkinson, 175 A.D.3d 612, 104 N.Y.S.3d 911 ; People v. Arrahman, 144 A.D.3d 1009, 1010, 43 N.Y.S.3d 60 ).
As the defendant contends, the Supreme Court should not have assessed five points under risk factor 14, since the People failed to prove by clear and convincing evidence that the defendant would not be subject to specialized supervision. At the SORA hearing, the court executed a form entitled "Additional Conditions of Probation for Sex Offenders," which subjected the defendant to specialized supervision by the Department of Probation. However, even deducting these five points, the resulting score still places the defendant in the presumptive risk level two category.
DILLON, J.P., AUSTIN, ROMAN and CHRISTOPHER, JJ., concur.