Opinion
2016–05063
03-28-2018
PEOPLE of State of New York, respondent, v. Paul REALI, appellant.
Thomas N.N. Angell, Poughkeepsie, N.Y. (Steven Levine of counsel), for appellant. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.
Thomas N.N. Angell, Poughkeepsie, N.Y. (Steven Levine of counsel), for appellant.
William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.
DECISION & ORDER Appeal by the defendant from an order of the County Court, Dutchess County (Peter M. Forman, J.), dated April 15, 2016, 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 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 his plea of guilty, of rape in the first degree in violation of Penal Law § 130.35(4).
In establishing an offender's appropriate risk level under SORA, the People "bear the burden of proving the facts supporting the determinations sought by clear and convincing evidence" ( Correction Law § 168–n[3] ).
Here, contrary to the defendant's contention, the County Court properly assessed him15 points under risk factor 11 based upon his history of alcohol abuse, which was proven by clear and convincing evidence (see People v. Pearce, 135 A.D.3d 722, 722, 22 N.Y.S.3d 575 ; People v. Wise, 127 A.D.3d 834, 834, 6 N.Y.S.3d 292 ; People v. Zavala, 114 A.D.3d 653, 654, 979 N.Y.S.2d 660 ). The court also properly assessed the defendant 10 points under risk factor 1, as the People demonstrated the element of forcible compulsion by clear and convincing evidence (see People v. Martinez, 125 A.D.3d 735, 736, 3 N.Y.S.3d 408 ; People v. Yeaden, 156 A.D.2d 208, 208, 548 N.Y.S.2d 468 ). Similarly, the court's assessment of 20 points under risk factor 4 was proper. The People provided clear and convincing evidence that the defendant engaged in two or more acts of sexual contact against the victim, including at least one act of sexual intercourse, separated by at least 24 hours (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 10 [2006]; People v. Patronick, 117 A.D.3d 1018, 1018, 986 N.Y.S.2d 593 ; People v. Brown, 60 A.D.3d 655, 655, 875 N.Y.S.2d 123 ).
SCHEINKMAN, P.J., DUFFY, CONNOLLY and CHRISTOPHER, JJ., concur.