| People v Woodard |
| 2009 NY Slip Op 04633 [63 AD3d 1655] |
| June 5, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v James C.Woodard, Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (Michelle H. Crowley of counsel), forrespondent.
Appeal from an order of the Ontario County Court (William F. Kocher, J.), entered January25, 2008. 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: Defendant appeals from an order determining that he is a level two risk underthe Sex Offender Registration Act ([SORA] Correction Law § 168 et seq.). Thetotal risk factor score on the risk factor instrument prepared by the Board of Examiners of SexOffenders (Board) resulted in the presumptive classification of defendant as a level two risk, butthe Board recommended a downward departure. County Court, however, was not bound by theBoard's recommendation and, in the proper exercise of its discretion, the court determineddefendant's risk level based upon the record before it (see People v Charache, 32 AD3d 1345 [2006], affd 9NY3d 829 [2007]; People vWalker, 47 AD3d 692, 693-694 [2008]). "The record supports the court's determinationthat there was no 'mitigating factor of a kind, or to a degree, not otherwise adequately taken intoaccount by the guidelines,' and thus that a departure from the presumptive risk level was notwarranted" (Charache, 32 AD3d 1345 [2006]).
We reject defendant's contention that the assessment of 15 points for drug or alcohol abuse isnot supported by the requisite clear and convincing evidence (see generally CorrectionLaw § 168-n [3]). At the SORA hearing, defendant admitted that he had a history of drugand alcohol abuse prior to the current offense and that, during his incarceration, there was adetermination against him following a tier III hearing resulting from his possession of marihuana(see generally People vMacDowall, 59 AD3d 763 [2009]). The court was entitled to reject the furthertestimony of defendant that he had a prolonged period of abstinence from alcohol or drugsinasmuch as defendant's testimony was contradicted by the determination following the tier IIIhearing and the statements of defendant regarding his alcohol use set forth in the presentencereport (see People v Longtin, 54AD3d 1110, 1111 [2008], lv denied 11 NY3d 714 [2008]).Present—Martoche, J.P., Smith, Fahey, Carni and Green, JJ.