| People v Regan |
| 2007 NY Slip Op 10317 [46 AD3d 1434] |
| December 21, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Timothy M.Regan, Appellant. |
—[*1] Lawrence Friedman, District Attorney, Batavia (William G. Zickl of counsel), forrespondent.
Appeal from an order of the Genesee County Court (Robert C. Noonan, J.), entered August30, 2006. The order determined that defendant is a level three risk pursuant to the Sex OffenderRegistration Act.
It is hereby ordered that the order so appealed from be and the same hereby is unanimouslyaffirmed without costs.
Memorandum: On appeal from an order determining that he is a level three risk pursuant tothe Sex Offender Registration Act (Correction Law § 168 et seq.), defendantcontends that County Court's determination of his risk level is not supported by the requisite clearand convincing evidence (see § 168-n [3]). We reject that contention. The recordestablishes that defendant has a long history of alcohol and drug abuse, including two arrests fordriving while intoxicated, and that defendant admitted that he continued to abuse alcohol,marihuana, cocaine and hallucinogenic mushrooms into his adulthood (see People v Ramos, 41 AD3d1250 [2007], lv denied 9 NY3d 809 [2007]; People v Vaughn, 26 AD3d 776, 777 [2006]). "An offender neednot be abusing drugs or alcohol at the time of the instant offense to receive points [under the riskfactor for drug or alcohol abuse]" (Sex Offender Registration Act: Risk Assessment Guidelinesand Commentary, at 15 [2006]). In any event, defendant offered no evidence that his more recenthistory was one of prolonged abstinence (see id.; Ramos, 41 AD3d 1250[2007]).
Contrary to the further contention of defendant, the People presented clear andconvincing evidence that his conduct while confined was unsatisfactory. The case summary notesthat defendant lost all of his good time credits while confined, which in itself is clear andconvincing evidence that his conduct while confined was unsatisfactory (see SexOffender Registration Act: Risk Assessment Guidelines and Commentary, at 16, n 9 [2006]). Inany event, defendant's presumptive classification as a level three risk would not change even ifwe were to determine that the points for that risk factor were improperly assessed (see People v Ferrara, 38 AD3d1302 [2007], lv denied 8 NY3d 815 [2007]; People v Lujan, 34 AD3d 1346, 1347 [2006], lv denied 8NY3d 805 [2007]). Finally, defendant failed to preserve for our review his contention that he wasentitled to a downward departure from his presumptive risk level (see People v Smith, 17 AD3d1045 [2005], lv denied 5 NY3d 705 [2005]). In any event, that contention lacksmerit inasmuch as defendant failed to present clear and convincing evidence [*2]of special circumstances justifying a downward departure (seeFerrara, 38 AD3d at 1303; People vMason, 35 AD3d 569 [2006]). Present—Scudder, P.J., Gorski, Lunn, Fahey andGreen, JJ.