| People v Green |
| 2010 NY Slip Op 02322 [71 AD3d 1499] |
| March 19, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Gerald Green,Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Nancy A. Gilligan of counsel), forrespondent.
Appeal from an order of the Monroe County Court (Frank P. Geraci, Jr., J.), entered July 28,2008. 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 (Correction Law § 168 et seq.).Contrary to the contention of defendant, County Court's assessment of 15 points against himunder the risk factor for drug or alcohol abuse is supported by clear and convincing evidence(see § 168-n [3]). "An assessment of 15 points is warranted under that risk factorwhere 'an offender has a substance abuse history or was abusing drugs and or alcohol at the timeof the offense' " (People v McClam,63 AD3d 1588, 1589 [2009], lv denied 13 NY3d 704 [2009], quoting Sex OffenderRegistration Act: Risk Assessment Guidelines and Commentary, at 15 [2006]). Here, the recordestablishes that defendant has a history of drug and alcohol abuse, including three priorconvictions for driving while ability impaired and several relapses following substance abusetreatment. In addition, the victim of the underlying offense reported that defendant was "drunk orhigh" when he committed the offense. In any event, defendant's presumptive classification as alevel two risk would not change even if those points were deducted, and the court properlyconcluded that a downward departure from that risk level was not warranted (see People v Vaughn, 26 AD3d776 [2006]). Present—Scudder, P.J., Sconiers, Green and Gorski, JJ.