| People v Kyle |
| 2009 NY Slip Op 05447 [64 AD3d 1177] |
| July 2, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Howard M.Kyle, Jr., Appellant. |
—[*1] Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
Appeal from an order of the Niagara County Court (Sara S. Sperrazza, J.), entered May 13,2008. 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 riskpursuant to the Sex Offender Registration Act ([SORA] Correction Law § 168 etseq.). Defendant failed to preserve for our review his contention that his waiver of his rightto a SORA hearing was not knowing, voluntary or intelligent (see generally People v Costas, 46AD3d 475 [2007], lv denied 10 NY3d 716 [2008]; People v Gliatta, 27 AD3d 441[2006]) and, in any event, that contention lacks merit (see Gliatta, 27 AD3d 441 [2006]).Although defendant also failed to preserve for our review his contention that County Court erredin assessing points against him under the risk factor based on his history of drug and alcoholabuse (see People v Roland, 292 AD2d 271 [2002], lv denied 98 NY2d 614[2002]), we note in any event that his contention lacks merit. The People presented clear andconvincing evidence of defendant's history of drug and alcohol abuse (see People v Ramos, 41 AD3d1250 [2007], lv denied 9 NY3d 809 [2007]; People v Vaughn, 26 AD3d 776, 777 [2006]), and defendantpresented no evidence to the contrary.
Finally, defendant failed to preserve for our review his contention that the court erred inassessing 15 points against him under the risk factor for acceptance of responsibility (see People v Lewis, 50 AD3d1567, 1568 [2008], lv denied 11 NY3d 702 [2008]) and, in any event, thatcontention is without merit. Although defendant pleaded guilty to the crime underlying theSORA determination, he showed no remorse in his statement to the probation officer and blamedthe crime on his use of drugs and alcohol. The court properly concluded that defendant'sstatement did not "reflect a genuine acceptance of responsibility as required by the riskassessment guidelines developed by the Board [of Examiners of Sex Offenders]" (People v Noriega, 26 AD3d 767[2006], lv denied 6 NY3d 713 [2006] [internal quotation marks omitted]).Present—Scudder, P.J., Smith, Centra, Peradotto and Green, JJ.