| People v Lewis |
| 2008 NY Slip Op 03847 [50 AD3d 1567] |
| April 25, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Victor Lewis,Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Shawn P. Hennessy of counsel), forrespondent.
Appeal from an order of the Erie County Court (Michael L. D'Amico, J.), entered February 8,2007. 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 is unanimously affirmed 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 had a long history of drug and alcohol abuse and thus was properlyassessed 15 points under the risk factor for drug or alcohol abuse. Indeed, defendant admittedthat he was a heavy drinker in the past and that his use of "a lot of cocaine for years" did not enduntil approximately one year before he was arrested for the instant sex crimes (see People v Regan, 46 AD3d1434, 1434-1435 [2007]; People vRamos, 41 AD3d 1250 [2007], lv denied 9 NY3d 809 [2007]). " 'An offenderneed not be abusing drugs or alcohol at the time of the instant offense to receive points' " underthat risk factor (Regan, 46 AD3d at 1435, quoting Sex Offender Registration Act: RiskAssessment Guidelines and Commentary, at 15 [2006]). In any event, we note that the casesummary prepared by the Board of Examiners of Sex Offenders (Board) states that defendant"associated the instant offense[s] with a heavy drinking period."
Defendant failed to preserve for our review his contention that he should not have beenassessed 15 points under the risk factor for acceptance of responsibility (see generally People v Smith, 17 AD3d1045 [2005], lv denied 5 NY3d 705 [2005]). In any event, that contention lacksmerit inasmuch as the record establishes that defendant continues to maintain his innocence andthat, while incarcerated, he refused to participate in all offense-related programs. Thus, thecourt's assessment of points under that risk factor is supported by clear and convincing evidence(see People v Hurlburt-Anderson,46 AD3d 1437 [2007]; People vDubuque, 35 AD3d 1011 [2006]). Contrary to the further contention of defendant, theassessment of points for the risk factor for a continuing course of sexual misconduct is supportedby clear and convincing evidence. According to the case summary prepared by the Board,defendant sexually abused the victim from April 1991 until [*2]January 1992, and that sexual abuse consisted of acts of sexualintercourse, deviant sexual intercourse and other forms of sexual contact (see RiskAssessment Guidelines and Commentary, at 10; People v Di John, 48 AD3d 1302 [2008]). Finally, defendant failedto preserve for our review his contention that he was entitled to a downward departure from hispresumptive risk level and, in any event, that contention lacks merit (see Regan, 46AD3d at 1435). Present—Smith, J.P., Lunn, Fahey, Pine and Gorski, JJ.