Opinion
11-19-2015
The PEOPLE of the State of New York, Respondent, v. David SNYDER, Appellant.
Martin J. McGuinness, Saratoga Springs, for appellant. Glenn MacNeill, Acting District Attorney, Malone (Gary Pasqua of counsel), for respondent.
Martin J. McGuinness, Saratoga Springs, for appellant.
Glenn MacNeill, Acting District Attorney, Malone (Gary Pasqua of counsel), for respondent.
Before: McCARTHY, J.P., ROSE, DEVINE and CLARK, JJ.
Opinion
McCARTHY, J.P.
Appeal from an order of the County Court of Franklin County (Main Jr., J.), entered January 6, 2014, which classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act.
Following a jury trial in 1996, defendant was convicted of sexual abuse in the first degree, attempted sexual abuse in the first degree, sexual abuse in the second degree and sodomy in the second degree and sentenced to an aggregate prison term of 6 to 18 years. The charges stem from defendant's conduct in subjecting two children, ages 8 and 11, to repeated sexual abuse. In anticipation of his release from prison upon the maximum expiration of his prison sentence, the Board of Examiners of Sex Offenders prepared a risk assessment instruments presumptively classifying him as a risk level III sex offender (140 points) and recommended against a departure. The People adopted this recommendation while defendant opposed any risk level classification, maintaining his innocence. County Court thereafter classified him as a risk level III sex offender with a designation as a sexually violent sex offender. Defendant appeals.
We affirm. Defendant argues that the People failed to establish that the crimes were separated by a 24–hour period of time, as required by risk factor 4 (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 10 [2006] ). Defendant did not raise this specific contention at the Sex Offender Registration Act hearing and, therefore, it is unpreserved (see People v. Windham, 10 N.Y.3d 801, 802, 856 N.Y.S.2d 557, 886 N.E.2d 179 [2008]; People v. Oginski, 35 A.D.3d 952, 953, 824 N.Y.S.2d 810 [2006] ).
We do find that 15 points were appropriately assessed for risk factor 11, a history of “[d]rug or [a]lcohol abuse,” based upon defendant's substance abuse history (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 15 [2006] ), notwithstanding his completion of a substance abuse program (see People v. Tumminia, 112 A.D.3d 1002, 1003, 976 N.Y.S.2d 312 [2013], lv. denied 22 N.Y.3d 864, 2014 WL 1243637 [2014] ). As reflected in the case summary and presentence report, defendant scored in the “alcoholic range” in an alcohol screening test and was diagnosed as alcohol dependent during outpatient rehabilitation, constituting clear and convincing evidence to support the assessment of points under this factor (see People v. Gallagher, 129 A.D.3d 1252, 1254, 11 N.Y.S.3d 712 [2015], lv. denied 26 N.Y.3d 908, 2015 WL 5972484 [2015]; People v. Harp, 127 A.D.3d 1529, 1530 [2015]; see also People v. Palmer, 20 N.Y.3d 373, 377–378, 960 N.Y.S.2d 719, 984 N.E.2d 917 [2013] ).
ORDERED that the order is affirmed, without costs.
ROSE, DEVINE and CLARK, JJ., concur.