| People v Legall |
| 2009 NY Slip Op 04774 [63 AD3d 1305] |
| June 11, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v MichaelLegall, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Shannon K. Corbitt of counsel), forrespondent.
Spain, J. Appeal from an order of the County Court of Albany County (Herrick, J.), enteredAugust 1, 2006, which classified defendant as a risk level two sex offender pursuant to the SexOffender Registration Act.
In 1999, while under parole supervision for a prior criminal offense, defendant, then age 19,admittedly engaged in sexual intercourse with a 13-year-old girl at his residence. Hesubsequently pleaded guilty to rape in the second degree and was sentenced, as a second felonyoffender, to a prison term of 2 to 4 years. In anticipation of his release from prison, the Board ofExaminers of Sex Offenders prepared a risk assessment instrument which presumptivelyclassified defendant as a risk level three sex offender (115 points) in accordance with the SexOffender Registration Act (see Correction Law art 6-C). The Board, however, basedupon defendant's satisfactory participation in sex offender and substance abuse programming, aswell as record evidence indicating that defendant's sexual abuse did not involve forciblecompulsion, recommended a downward departure to risk level two sex offender status.Following a risk assessment hearing at which the People advocated that defendant be classifiedas a level two sex offender based upon their assignment of 105 points, defendant was classifiedby County Court as a risk level two sex offender. On this appeal, defendant asserts that CountyCourt inappropriately assessed points under several categories on the risk assessment instrumentand that his counsel [*2]was ineffective for failing to challengesuch assessments.
We disagree and affirm. In determining whether the prosecution has met its burden ofestablishing a defendant's proper risk level classification by clear and convincing evidence,County Court may consider reliable hearsay evidence, including the presentence investigationreport, case summary and statements made by the victim (see People v Longtin, 54 AD3d 1110, 1110 [2008], lvdenied 11 NY3d 714 [2008];People v Richards, 50 AD3d 1329, 1330 [2008], lv denied 10 NY3d 715[2008]). Here, notwithstanding the Board's recommendation to credit defendant with acceptingresponsibility for his crime based upon his satisfactory completion of a sex offender program,defendant informed his presentence investigator that the victim's allegations were a "plot to end[his] life" and denied having engaged in inappropriate sexual contact with her. Consequently,County Court was not bound by the Board's "recommendation" (Correction Law § 168-l[6]) on this factor (see People vArotin, 19 AD3d 845, 847 [2005]), and we find no basis to disturb the court'sassignment of 10 points for defendant's failure to accept responsibility for his crime (see People v Dubuque, 35 AD3d1011, 1011 [2006]; Sex Offender Registration Act: Risk Assessment Guidelines andCommentary, at 15-16 [2006]).
Similarly, despite the fact that defendant underwent treatment while incarcerated, CountyCourt's assessment of 15 points for defendant's drug and alcohol abuse is supported by clear andconvincing evidence. Indeed, defendant admitted to smoking marihuana on a dailybasis—even while under parole supervision—prior to being incarcerated and deniedthat such usage was indicative of drug dependency (see People v Warren, 42 AD3d 593, 594 [2007], lv denied9 NY3d 810 [2007]).
Further, defendant asserts that County Court's 25-point assessment for "sexual contact withthe victim" warrants a downward departure inasmuch as "the victim's lack of consent is due onlyto [her] inability to consent by virtue of age" (Sex Offender Registration Act: Risk AssessmentGuidelines and Commentary, at 9 [2006]). We note, however, that the victim's statementsummarized in the case summary and the presentence report indicated that on multiple occasionsdefendant, who had a loaded gun at his residence, initiated sexual intercourse with her withouther consent while she was sleeping and that she pretended to remain asleep throughout suchencounters. Based on the foregoing, we are not at all persuaded that "scoring 25 points in thiscategory results in an over-assessment of [defendant's] risk to public safety" so as to render adownward departure appropriate (Sex Offender Registration Act: Risk Assessment Guidelinesand Commentary, at 9 [2006]). Likewise, defense counsel's failure to challenge such assessmentsdid not constitute ineffective assistance and the order classifying defendant as a risk level twosex offender is affirmed (see People vCarey, 47 AD3d 1079, 1080 [2008], lv dismissed 10 NY3d 893 [2008]; People v Douglas, 18 AD3d 967,968 [2005], lv denied 5 NY3d 710 [2005]).
Mercure, J.P., Malone Jr., Kavanagh and McCarthy, JJ., concur. Ordered that the order isaffirmed, without costs.