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The People of the State of v. Tony J. Irizarry

State of New York Supreme Court, Appellate Division Third Judicial Department


September 27, 2012

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
TONY J. IRIZARRY, APPELLANT.

Appeal from an order of the County Court of Montgomery County (Catena, J.), entered May 27, 2010, which classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act.

The opinion of the court was delivered by: Mercure, J.P.

MEMORANDUM AND ORDER

Calendar Date: September 11, 2012

Before: Mercure, J.P., Rose, Spain, Malone Jr. and Garry, JJ.

Upon pleading guilty to one count of criminal sexual act in the second degree in satisfaction of a 12-count indictment, defendant was sentenced to a prison term of three years, to be followed by a period of postrelease supervision. In anticipation of his release from prison, the Board of Examiners of Sex Offenders prepared a risk assessment instrument in accordance with the Sex Offender Registration Act (see Correction Law art 6-C), presumptively classifying defendant as a risk level III sex offender. Following a hearing, County Court adopted the Board's recommendation and classified defendant as a risk level III sex offender. Defendant appeals.

Despite his claim that he no longer abuses drugs or alcohol, defendant's history -- including his admission that he began to use both marihuana and alcohol in his teens, his subsequent diagnosis as cocaine, alcohol and cannabis dependent, and his prior unsuccessful participation in alcohol and substance abuse treatment programs -- supports County Court's assessment of 15 points for drug and alcohol abuse (see People v Reyes, 48 AD3d 267, 268 [2008], lv denied 10 NY3d 711 [2008]; People v Whaley,

38 AD3d 1106, 1107 [2007]). As for his criminal history, although most of defendant's numerous past offenses were misdemeanors, he also had a youthful offender adjudication for attempted burglary in the second degree, a class D violent felony, warranting the assessment of 30 points (see People v Stacconi, 81 AD3d 1046, 1046-1047 [2011]; People v Irving, 45 AD3d 1389, 1389-1390 [2007], lv denied 10 NY3d 703 [2008]). Accordingly, defendant was properly classified as a risk level III sex offender.

Rose, Spain, Malone Jr. and Garry, JJ., concur.

ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20120927

© 1992-2012 VersusLaw Inc.



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