Opinion
2012-10-10
PEOPLE of State of New York, respondent, v. Jacob QUINN, appellant.
Thomas T. Keating, Dobbs Ferry, N.Y. (Joseph M. Angiolillo of counsel), for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Maria I. Wager and Steven A. Bender of counsel), for respondent.
Thomas T. Keating, Dobbs Ferry, N.Y. (Joseph M. Angiolillo of counsel), for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Maria I. Wager and Steven A. Bender of counsel), for respondent.
MARK C. DILLON, J.P., THOMAS A. DICKERSON, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.
Appeal by the defendant from an order of the County Court, Westchester County (Cacace, J.), entered November 1, 2010, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6–C.
ORDERED that the order is affirmed, without costs or disbursements.
The defendant's contentions that the procedures employed at his Sex Offender Registration Act (hereinafter SORA) risk level assessment hearing violated due process are without merit.
The County Court's designation of the defendant as a level two sex offender is supported by clear and convincing evidence ( seeCorrection Law § 168–n [3] ). The County Court properly assessed the defendant 10 points under risk factor 8 because he was less than 20 years old at the time of his first act of sexual misconduct. Contrary to the defendant's contention, the SORA Risk Assessment Guidelines and Commentary expressly state that an offender's age at the “first act of sexual misconduct” under this risk factor “includes his age at the time of the commission of the instant offense” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 13 [2006] ). The court also properly assessed the defendant 15 points under risk factor 11 for a history of drug or alcohol abuse. The People established by clear and convincing evidence that the defendant had a history of substance abuse, and was abusing marijuana and/or alcohol at the time of the underlying incident ( see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 15 [2006]; see also People v. Crandall, 90 A.D.3d 628, 629–630, 934 N.Y.S.2d 446;People v. Carpenter, 60 A.D.3d 833, 833, 874 N.Y.S.2d 382;People v. Robinson, 55 A.D.3d 708, 708, 866 N.Y.S.2d 683). It is true that, where a defendant “abused drugs and/or alcohol in the distant past, but his more recent history is one of prolonged abstinence, the Board or court may choose to score zero points in this category” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 15 [2006] ). Here, however, although the defendant claims that his alcohol use is now manageable, there is no evidence in the record demonstrating prolonged abstinence on his part.
The County Court also properly assessed the defendant 10 points under risk factor 12, for failure to accept responsibility for his conduct. The evidence before the County Court, specifically the defendant's statements in a letter to the Board of Examiners of Sex Offenders (hereinafter the Board) written prior to the Board's issuance of its recommendations, demonstrated by clear and convincing evidence that the defendant had not accepted responsibility for his conduct ( see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 15–16 [2006]; see also People v. Thompson, 95 A.D.3d 977, 978, 943 N.Y.S.2d 771,lv. denied2012 N.Y. Slip Op. 83603, 2012 WL 3931118 [2012] ).
The defendant was afforded meaningful representation at the SORA hearing ( see People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400;People v. Reynolds, 90 A.D.3d 630, 631, 934 N.Y.S.2d 448;People v. Bowles, 89 A.D.3d 171, 181, 932 N.Y.S.2d 112).