| People v Murphy |
| 2009 NY Slip Op 09198 [68 AD3d 832] |
| December 8, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Marquise Murphy, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Tammy J. Smiley and Sarah S.Rabinowitz of counsel), for respondent.
Appeal by the defendant from an order of the County Court, Nassau County (Sullivan, J.),dated October 20, 2006, which, after a hearing, designated him a level two sex offender pursuantto Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
In establishing the appropriate risk level designation under the Sex Offender RegistrationAct (Correction Law art 6-C), the People bear the burden of proving the necessary facts by clearand convincing evidence (see Correction Law § 168-n [3]; People v Lawless, 44 AD3d 738[2007]; People v Hardy, 42 AD3d487 [2007]). The facts may be proved, inter alia, by reliable hearsay: "the court shall review. . . any relevant materials and evidence submitted by the sex offender and thedistrict attorney and the recommendation and materials submitted by the board, and mayconsider reliable hearsay evidence submitted by either party, provided that it is relevant to thedeterminations" (Correction Law § 168-n [3]; see People v Mingo, 12 NY3d 563 [2009]).
Here, the County Court properly assessed 15 points for risk factor 11, which relates to drugor alcohol abuse, in light of the admissions by the then 19-year-old defendant to the ProbationDepartment, as revealed in the presentence report, to drinking when he feels stressed anddrinking to the point of intoxication (seePeople v Williams, 34 AD3d 662, 663 [2006]). Further, the defendant also reported thathis family was concerned about his alcohol use. Such alcohol use was sufficient to constitutealcohol abuse for purposes of risk factor 11. Contrary to the defendant's contention, underagedrinking to the point of intoxication could not have been contemplated by the Sex OffenderRegistration Act: Risk Assessment Guidelines and Commentary (2006) as the type of behaviordenoted therein as "occasional social drinking" that would not warrant an assessment of pointsfor this risk factor. Thus, based on the defendant's own statements regarding his use of alcohol,the hearing court properly found that the People had demonstrated alcohol abuse, by clear andconvincing evidence (see People vGoodwin, 49 AD3d 619, 620 [2008]; People v Williams, 34 AD3d at 663).
The hearing court also properly relied upon the defendant's statements to the arresting [*2]officers and, subsequently, to the Probation Department, denyinghaving sexually assaulted the four-year-old victim or blaming the child for seducing him, ratherthan upon the defendant's admission of guilt in his plea allocution, in finding that the Peopleproved by clear and convincing evidence that the defendant failed to accept responsibility for hiscrime (see People v Kyle, 64 AD3d1177 [2009]; People v Bright,63 AD3d 1133, 1134 [2009]; People v Wright, 53 AD3d 963, 964 [2008]; People v Noriega, 26 AD3d 767[2006]; People v Mitchell, 300 AD2d 377, 378 [2002]; People v Chilson, 286AD2d 828 [2001]). Further, the hearing court properly relied on the case summary of the Boardof Examiners of Sex Offenders in finding that the defendant refused or was expelled from, sexoffender treatment (see People v Bright, 63 AD3d at 1134).
The defendant's remaining contentions are without merit (see Correction Law§ 168-a [3], [7] [b]; People vForney, 28 AD3d 446 [2006]; People v Villane, 17 AD3d 336, 337 [2005]). Skelos, J.P., Eng,Leventhal and Chambers, JJ., concur.