| People v Struble |
| 2008 NY Slip Op 02667 [49 AD3d 1348] |
| March 21, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v David E.Struble, Appellant. |
—[*1] Susan H. Lindenmuth, District Attorney, Penn Yan, for respondent.
Appeal from an order of the Yates County Court (W. Patrick Falvey, J.), entered December15, 2006. The order determined that defendant is a level two risk pursuant to the Sex OffenderRegistration Act.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: On appeal from an order determining that he is a level two risk pursuant tothe Sex Offender Registration Act ([SORA] Correction Law § 168 et seq.),defendant contends that County Court's assessment of 15 points each for risk factors 9 and 11 setforth in the risk assessment instrument is not supported by clear and convincing evidence (see§ 168-n [3]). We reject those contentions. With respect to risk factor 9, concerning thenumber and nature of prior crimes, defendant contends that his Texas felony conviction shouldnot be considered a felony under SORA because it does not qualify as a predicate felony forsentencing purposes in New York (see Penal Law § 70.06 [1] [b] [i]; People vMuniz, 74 NY2d 464, 471 [1989]). As the court properly concluded, Correction Law §168-l (5) (b) (iii) does not incorporate the definition of a second felony offender set forthin Penal Law § 70.06 (1) (b) (i) in the criteria for determining whether a felony committedin another jurisdiction is a felony with respect to risk factor 9.
Risk factor 11 concerns drug or alcohol abuse, and defendant admitted that he was arrestedbetween 30 and 40 times in Texas for drug and alcohol related offenses and could not remember14 years of his life because of his drug and alcohol abuse. Indeed, defendant has not shownsuccessful completion of any treatment program, nor has he shown that he attended AlcoholicsAnonymous meetings (cf. People vWilbert, 35 AD3d 1220 [2006]). We thus conclude that the court's assessment of pointsfor risk factors 9 and 11, respectively, is supported by the requisite clear and convincingevidence. Present—Martoche, J.P., Smith, Peradotto, Pine and Gorski, JJ. [See 14Misc 3d 1201(A), 2006 NY Slip Op 52377(U).]