| People v Brownell |
| 2009 NY Slip Op 06744 [66 AD3d 1060] |
| October 1, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Michael R.Brownell, Appellant. |
—[*1] Kevin C. Kortright, District Attorney, Fort Edward, for respondent.
Spain, J. Appeal from an order of the County Court of Washington County (Pritzker, J.),entered November 30, 2007, which classified defendant as a risk level three sex offenderpursuant to the Sex Offender Registration Act.
Defendant entered an Alford plea of guilty to sexual abuse in the first degree in fullsatisfaction of a three-count indictment arising from defendant's repeated sexual contact with afemale child between the time she was 10 and 14 years old. Defendant was thereafter sentencedto a prison term of four years, to run concurrent to a prison term of four years upon his plea ofguilty to assault in the second degree, based upon a separate indictment charging him withinjuring a Washington County correction officer. Prior to his release, County Court issued adetailed written decision and order adjudicating defendant to be a risk level three sexuallyviolent offender pursuant to the Sex Offender Registration Act (see Correction Law art6-C) and defendant now appeals.
Defendant argues that his risk level three classification is not supported by clear andconvincing evidence, specifically challenging County Court's assignment of points in risk factorfour for the duration of the offense and in risk factor 11 for history of drug or alcohol abuse. Wedisagree. Points are assessed for a continuing course of sexual misconduct under risk factor fourwhen, as relevant here, a defendant engages in "three or more acts of sexual contact over aperiod [*2]of at least two weeks" (Sex Offender Registration Act:Risk Assessment Guidelines and Commentary, at 10 [2006]). Here, evidence including thevictim's grand jury testimony and sworn statement to police referring to numerous acts of sexualcontact by defendant over a period of more than three years established a continuing course ofsexual misconduct by clear and convincing evidence (see Correction Law § 168-n[3]; People v Richards, 50 AD3d1329, 1330 [2008], lv denied 10 NY3d 715 [2008]; see also People v Wright, 53 AD3d963, 964 [2008], lv denied 11 NY3d 710 [2008]).
Regarding the assessment of points for drug or alcohol abuse, such an assessment is proper"if an offender has a substance abuse history or was abusing drugs and or alcohol at the time ofthe offense" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at15 [2006]). The record establishes that defendant has had prior alcohol-related convictions,including a conviction for driving while ability impaired at or around the time of the instant sexcrime; defendant also admitted using illegal drugs in the past. Accordingly, County Court'sassessment of points under risk factor 11 was also supported by the requisite clear andconvincing evidence (see People v Wright, 53 AD3d at 964; People v Vaughn, 26 AD3d 776,777 [2006]). Therefore, we find that defendant was properly classified as a risk level threesexually violent offender.
Mercure, J.P., Malone Jr., Kavanagh and McCarthy, JJ., concur. Ordered that the order isaffirmed, without costs.