| People v Lerch |
| 2009 NY Slip Op 07171 [66 AD3d 1088] |
| October 8, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Andrew W.Lerch, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Victoria M. Esposito of counsel), forrespondent.
Lahtinen, J. Appeal from an order of the County Court of St. Lawrence County (Richards,J.), entered January 28, 2008, which classified defendant as a risk level two sex offenderpursuant to the Sex Offender Registration Act.
Defendant pleaded guilty to a superior court information charging him with criminal sexualact in the third degree and was sentenced to 120 days in the local jail and placed on probation for10 years. In anticipation of his release, the Board of Examiners of Sex Offenders prepared a riskassessment instrument presumptively classifying defendant as a risk level two sex offender inaccordance with the Sex Offender Registration Act (see Correction Law art 6-C).Following a hearing, County Court adhered to the Board's recommendation and classifieddefendant as a risk level two sex offender. This appeal by defendant ensued.
Defendant initially contends that he was improperly assessed 10 points under risk factor 12for failing to accept responsibility. We cannot agree. Although defendant pleaded guilty andindicated during the course of his interview with the Probation Department that he regretted hisbehavior, he also described the victim as a "provocateur," contended that the sex between themwas "completely consensual" and alleged that he had been misled by the victim regarding hisage. Under these circumstances, the record supports the finding that defendant failed togenuinely accept responsibility for his actions (see People v Thomas, 59 AD3d 783, 785 [2009]; People v [*2]Hurlburt-Anderson, 46 AD3d 1437 [2007]; People v Dubuque, 35 AD3d 1011[2006]).
Nor are we persuaded that defendant was improperly assessed 15 points under risk factor 11for drug or alcohol abuse. An assessment of points under this factor is appropriate "if an offenderhas a substance abuse history or was abusing drugs and or alcohol at the time of theoffense" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 15[2006] [emphasis added]). Defendant indicated that on the night of the incident, he ingested eightpain pills and consumed half a bottle of liquor and approximately four beers. We therefore findthat County Court's assessment of 15 points under this factor was entirely proper (see People v Bateman, 59 AD3d788, 789-790 [2009]; see alsoPeople v Parker, 62 AD3d 1195 [2009]; People v Longtin, 54 AD3d 1110, 1111 [2008], lv denied11 NY3d 714 [2008]). In sum, as the record contains clear and convincing evidence to supportthe contested points, we cannot say that County Court abused its discretion in classifyingdefendant as a risk level two sex offender. Accordingly, County Court's order is affirmed.
Mercure, J.P., Kane, McCarthy and Garry, JJ., concur. Ordered that the order is affirmed,without costs.