State of New York Supreme Court, Appellate Division Third Judicial Department
October 8, 2009
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
ANDREW W. LERCH, APPELLANT.
The opinion of the court was delivered by: Lahtinen, J.
MEMORANDUM AND ORDER
Calendar Date: September 16, 2009
Before: Mercure, J.P., Lahtinen, Kane, McCarthy and Garry, JJ.
Appeal from an order of the County Court of St. Lawrence County (Richards, J.), entered January 28, 2008, which classified defendant as a risk level II sex offender pursuant to the Sex Offender Registration Act.
Defendant pleaded guilty to a superior court information charging him with criminal sexual act in the third degree and was sentenced to 120 days in the local jail and placed on probation for 10 years. In anticipation of his release, the Board of Examiners of Sex Offenders prepared a risk assessment instrument presumptively classifying defendant as a risk level II sex offender in accordance with the Sex Offender Registration Act (see Correction Law art 6-C). Following a hearing, County Court adhered to the Board's recommendation and classified defendant as a risk level II sex offender. This appeal by defendant ensued.
Defendant initially contends that he was improperly assessed 10 points under risk factor 12 for failing to accept responsibility. We cannot agree. Although defendant pleaded guilty and indicated during the course of his interview with the Probation Department that he regretted his behavior, he also described the victim as a "provocateur," contended that the sex between them was "completely consensual" and alleged that he had been misled by the victim regarding his age. Under these circumstances, the record supports the finding that defendant failed to genuinely accept responsibility for his actions (see People v Thomas, 59 AD3d 783, 785 ; People v Hurlburt-Anderson, 46 AD3d 1437 ; People v Dubuque, 35 AD3d 1011 ).
Nor are we persuaded that defendant was improperly assessed 15 points under risk factor 11 for drug or alcohol abuse. An assessment of points under this factor is appropriate "if an offender has a substance abuse history or was abusing drugs and or alcohol at the time of the offense" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 15  [emphasis added]). Defendant indicated that on the night of the incident, he ingested eight pain pills and consumed half a bottle of liquor and approximately four beers. We therefore find that County Court's assessment of 15 points under this factor was entirely proper (see People v Bateman, 59 AD3d 788, 789-790 , lv denied ___ NY3d ___ [Sept. 3, 2009]; see also People v Parker, 62 AD3d 1195 ; People v Longtin, 54 AD3d 1110, 1111 , lv denied 11 NY3d 714 ). In sum, as the record contains clear and convincing evidence to support the contested points, we cannot say that County Court abused its discretion in classifying defendant as a risk level II sex offender. Accordingly, County Court's order is affirmed.
Mercure, J.P., Kane, McCarthy and Garry, JJ., concur.
ORDERED that the order is affirmed, without costs.
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