| People v Goodwin |
| 2008 NY Slip Op 02127 [49 AD3d 619] |
| March 11, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Kenneth Goodwin, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Anthea H. Bruffee,and Morgan J. Dennehy of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Marrero, J.),dated March 7, 2006, which, after a hearing to redetermine the defendant's sex offender risk levelpursuant to the stipulation of settlement in Doe v Pataki (3 F Supp 2d 456 [1998]),designated him a level two sex offender pursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
In 1992 the defendant pleaded guilty to attempted rape in the first degree in satisfaction of an11-count indictment arising from his rape and sodomy of a nine-year-old girl. In 1996 he wasadjudicated a level two sex offender under the Sex Offender Registration Act (hereinafterSORA). In 2006, acting upon the stipulation of settlement agreed to in Doe v Pataki (3 FSupp 2d 456 [1998]), the defendant was granted a redetermination of his status. At theredetermination hearing, the defendant was again adjudicated a level two sex offender based on atotal of 80 points on the risk assessment instrument. On appeal, the defendant argues that thecourt erred in assessing him 15 points under risk factor 11 for a "history of drug or alcoholabuse," and in assessing him 25 rather than 10 points under risk factor 2 for "sexual contact withvictim." Consequently, he contends, he was a presumptive level one sex offender and shouldhave been so adjudicated. In any event, he argues, the court improvidently exercised its discretionin denying his alternative request for a discretionary downward departure to a level one sexoffender status based on a recent history of abstinence from the use of alcohol.
Contrary to the defendant's contentions on appeal, the materials upon which the SupremeCourt based its determination constituted reliable hearsay within the meaning of SORA (see People v Mingo, 49 AD3d 148[2d Dept 2008]). Further, the materials provided clear and convincing evidence both that thedefendant had a history of alcohol abuse and that he had sexual contact with his nine-year-oldvictim (see People v Thompson, 31AD3d 409 [2006]; People v DongV. Dao, 9 AD3d 401 [2004]). Thus, the defendant was properly adjudicated a level twosex offender.
The defendant argues that the court improvidently exercised its discretion in assessing himpoints for a history of drug and/or alcohol abuse when his two prior convictions foralcohol-related offenses predated the underlying offense by several years, and he presentedevidence at the redetermination hearing of a recent history of prolonged abstinence (seeSex Offender Registration Act: Risk Assessment Guidelines and Commentary at 15 [2006ed]). However, the defendant's vague assertions that he had "stopped drinking" because he hadbeen diagnosed with a heart problem while incarcerated on the underlying offense, and that hehad been told that further alcohol consumption could lead to a heart attack or stroke, wasunsupported by any records or evidence from a medical or health professional. Further, a recenthistory of sobriety was not proved by the defendant's lack of further convictions foralcohol-related offenses since his release from imprisonment on the underlying offense.Otherwise, risk factor 11 "focuses on the offender's history of abuse and the circumstances at thetime of the crime" (Sex Offender Registration Act: Risk Assessment Guidelines andCommentary at 15 [2006 ed]).
Finally, the defendant failed to demonstrate by clear and convincing evidence that thereexisted a mitigating factor or factors of a kind or to a degree not otherwise taken into account bythe guidelines that warranted a downward departure from his presumptive level two sex offenderstatus (see People v Adams, 44AD3d 1020 [2007]; People vInghilleri, 21 AD3d 404 [2005]).
The defendant's remaining contentions are without merit. Ritter, J.P., Florio, McCarthy andDickerson, JJ., concur.