| People v Parker |
| 2009 NY Slip Op 03988 [62 AD3d 1195] |
| May 21, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v DelbertParker, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Rose, J. Appeal from an order of the County Court of Schenectady County (Drago, J.),entered December 31, 2008, which classified defendant as a risk level two sex offender pursuantto the Sex Offender Registration Act.
In 2003, defendant pleaded guilty to one count of attempted rape in the first degree and wassentenced to 7½ years in prison and five years of postrelease supervision. In anticipation ofhis release from prison, the Board of Examiners of Sex Offenders recommended that defendantbe classified as a risk level two sex offender (85 points) in accordance with the Sex OffenderRegistration Act (see Correction Law art 6-C). Following a hearing, County Courtagreed with that classification and defendant appeals.
We affirm. The People bear the burden of establishing the appropriate risk levelclassification by clear and convincing evidence (see Correction Law § 168-n [3];People v Stewart, 61 AD3d 1059, 1060 [2009]). Such evidence may consist of "reliablehearsay including, among other things, the presentence investigation report, risk assessmentinstrument and case summary, as well as any grand jury testimony and the victim's swornstatement to police" (People v Stewart, 61 ADd at 1060 [citation omitted]).
Here, defendant takes issue with the assessment of 30 points on risk factor 1, which involvesthe use of violence while armed with a dangerous instrument. The victim's sworn [*2]statement to police and the case summary indicate that, during theassault, defendant held a pillow over the victim's face to muffle her screams. We agree withCounty Court that, used in this manner, the pillow was "readily capable of causing death or otherserious physical injury" and constituted a dangerous instrument (Penal Law § 10.00 [13];see People v Vasquez, 88 NY2d 561, 580 [1996]; People v Cwikla, 46 NY2d434, 442 [1979]; People v Marshall, 105 AD2d 849, 850 [1984]).
County Court also properly assessed 15 points on risk factor 11 for defendant's history ofalcohol abuse. Defendant abused alcohol for a prolonged period of time and alcohol wasinvolved in the commission of the present offense (see People v Longtin, 54 AD3d 1110, 1111 [2008], lvdenied 11 NY3d 714 [2008]; People v Regan, 46 AD3d 1434, 1434-1435 [2007]). Defendant, tohis credit, completed alcohol treatment programs while in prison, but "his recent history ofabstinence while incarcerated is not necessarily predictive of his behavior when no longer undersuch supervision" (People vWarren, 42 AD3d 593, 594 [2007], lv denied 9 NY3d 810 [2007]).
Finally, we have considered defendant's remaining contentions and find them lacking inmerit.
Peters, J.P., Spain, Kane and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.