Opinion
10-17-2017
The PEOPLE of the State of New York, Respondent, v. Terry PRESSLEY, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Michael J. Yetter of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Michael J. Yetter of counsel), for respondent.
Order, Supreme Court, New York County (Ruth Pickholz, J.), entered on or about February 23, 2015, 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 under the risk factor for alcohol abuse. Such an assessment may be based on alcohol abuse at the time of the underlying sex crime ( People v. Palmer, 20 N.Y.3d 373, 378–379, 960 N.Y.S.2d 719, 984 N.E.2d 917 [2013] ). Here, the case summary and the victim's grand jury testimony provided clear and convincing evidence that defendant committed the second of two sex offenses while intoxicated. In particular, the victim's description of defendant's condition and behavior supported the inference that the sex crime was linked to his excessive consumption of alcohol (see People v. Andrade, 124 A.D.3d 533, 1 N.Y.S.3d 107 [1st Dept.2015], lv. denied 25 N.Y.3d 903, 2015 WL 1526023 [2015] ).
Assuming, without deciding, that the state and federal standards for effective assistance at a criminal trial apply to a civil sex offender proceeding (see People v. Reid, 59 A.D.3d 158, 872 N.Y.S.2d 452 [1st Dept.2009], lv. denied 12 N.Y.3d 708, 881 N.Y.S.2d 17, 908 N.E.2d 925 [2009] ), we conclude that defendant received effective assistance at the classification hearing. Defendant has not shown that he was prejudiced by his attorney's failure to make additional arguments at the hearing. We also find no basis for a downward departure (see generally People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ).
TOM, J.P., RICHTER, ANDRIAS, GESMER, SINGH, JJ., concur.