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The People of the State of New York, Respondent v. Shawn M. Kelley

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


July 2, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
SHAWN M. KELLEY, DEFENDANT-APPELLANT.

Appeal from an order of the Monroe County Court (Richard A. Keenan, J.), entered August 14, 2007. The order determined that defendant is a level two risk pursuant to the Sex Offender Registration Act.

951

MEMORANDUM AND ORDER

PRESENT: MARTOCHE, J.P., CENTRA, PERADOTTO, GREEN, AND GORSKI, JJ.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Defendant appeals from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.). Defendant's contention that County Court erred in assessing points under the risk factor for "duration of offense conduct with victim" lacks merit. We conclude that the People established by the requisite clear and convincing evidence that there was a continuing course of sexual contact (see § 168-n [3]; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 10 [2006]; see also People v Wood, 60 AD3d 1350). We further conclude that the court properly assessed 15 points under the risk factor for defendant's history of drug and alcohol abuse inasmuch as the People presented clear and convincing evidence of such a history (see People v Ramos, 41 AD3d 1250, lv denied 9 NY3d 809; People v Vaughn, 26 AD3d 776, 777), and defendant presented no evidence of prolonged abstinence "in recent years" (Vaughn, 26 AD3d at 777; see Ramos, 41 AD3d 1250). Finally, defendant failed to preserve for our review his contention that he was entitled to a downward departure from his presumptive risk level (see People v Ratcliff, 53 AD3d 1110, lv denied 11 NY3d 708; People v Regan, 46 AD3d 1434, 1435) and, in any event, that contention lacks merit (see Ratcliff, 53 AD3d 1110; People v Marks, 31 AD3d 1142, 1143, lv denied 7 NY3d 715).

Entered: July 2, 2009 Patricia L. Morgan Clerk of the Court

20090702

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