Calendar Date: February 14, 2018
P. Ferro, Albany, for appellant.
David Soares, District Attorney, Albany (Michael C. Wetmore
of counsel), for respondent.
Before: Egan Jr., J.P., Clark, Mulvey, Aarons and Rumsey, JJ.
MEMORANDUM AND ORDER
from an order of the County Court of Albany County (Herrick,
J.), entered April 4, 2016, which classified defendant as a
risk level two sex offender pursuant to the Sex Offender
pleaded guilty in Florida to attempted lewd and lascivious
assault upon a child in 2000, stemming from his admitted
conduct in subjecting a 13-year-old girl to three-way sexual
conduct on three separate occasions, with the participation
of an 18-year-old codefendant. Defendant later relocated to
New York, apparently in 2016, and was required to register as
a sex offender. To that end, the People submitted a risk
assessment instrument pursuant to the Sex Offender
Act (see Correction Law art 6-C [hereinafter SORA])
assessing 80 points against defendant, presumptively
classifying him as a risk level two sex offender. Following a
hearing, County Court classified defendant as a risk level
two sex offender. Defendant appeals.
affirm. Under SORA, "[t]he People must establish the
proper risk level classification by clear and convincing
evidence, which may include reliable hearsay such as the risk
assessment instrument, case summary, presentence
investigation report and statements provided by the victim to
the police" (People v Darrah, 153 A.D.3d 1528,
1528  [internal quotation marks and citation omitted];
see Correction Law § 168-n ; People v
Mingo, 12 N.Y.3d 563, 571-572 ). Defendant's
sole contention on appeal is that County Court erred in
adding 15 points to his score under risk factor 11 based upon
his history of alcohol and drug abuse. We cannot agree.
of points under risk factor 11 is appropriate where an
offender has "a history of drug or alcohol abuse"
(Sex Offender Registration Act: Risk Assessment Guidelines
and Commentary, risk factor 11 ; accord People v
Palmer, 20 N.Y.3d 373, 378 ). In assessing points
under this risk factor, the People relied upon evidence that
defendant had been required to obtain substance abuse
treatment as a result of the underlying crime and that, in
the 10 years prior to the SORA hearing, he had been convicted
of criminal possession of marihuana and driving under the
influence of alcohol. In his written submission in these
proceedings, defendant admitted that, in 2011, he had
experienced an "alcohol fueled downward spiral"
(see People v Hernaiz, 152 A.D.3d 803, 804 ,
lv denied 30 N.Y.3d 906');">30 N.Y.3d 906 ; People v
Price, 148 A.D.3d 847, 847 , lv denied 29
N.Y.3d 910 ). While he has reportedly been sober since
2012 and remained in active substance abuse treatment as of
the 2016 SORA hearing, we find that points were appropriately
assessed under risk factor 11 based upon his extensive
history of alcohol abuse (see People v Morrell, 139
A.D.3d 835, 836 , lv dismissed and denied 28
N.Y.3d 947 ; People v Snyder, 133 A.D.3d 1052,
1052 , lv denied 27 N.Y.3d 902');">27 N.Y.3d 902 ;
People v Griest, 133 A.D.3d 1062, 1062 ;
People v Gallagher, 129 A.D.3d 1252, 1254 ,
lv denied 26 N.Y.3d 908');">26 N.Y.3d 908 ; cf. People v
Saunders, 156 A.D.3d 1138, 1139-1140 ; People
v Davis, 135 A.D.3d 1256, 1256 , lv
denied 27 N.Y.3d 904');">27 N.Y.3d 904 ; People v Ross, 116
A.D.3d 1171, 1172 ). Notwithstanding his argument that
he no longer represents a danger to society, it has been
recognized that "[a]lcohol and drug abuse are highly
associated with sex offending... not [because they] cause
deviate behavior [but, ] rather, [because they] serve as a
disinhibitor and therefore [are] a precursor to
offending" (Sex Offender Registration Act: Risk
Assessment Guidelines and Commentary at 15 ;
see Correction Law § 168-l  [a] [ii])
. Accordingly, we find that defendant
was properly classified as a risk level two sex offender.
Jr., J.P., Clark, Aarons and Rumsey, JJ., concur.
that the order is affirmed, without costs.