| People v Vangorder |
| 2010 NY Slip Op 03668 [72 AD3d 1614] |
| April 30, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v FredVangorder, 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 April10, 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.). Wereject defendant's contention that the assessment of 15 points for drug or alcohol abuse is notsupported by the requisite clear and convincing evidence (see generally § 168-n[3]). Defendant admitted to the probation officer who prepared his presentence report that he wascurrently using marihuana. Although defendant completed a substance abuse treatment programwhile he was incarcerated, "his recent history of abstinence while incarcerated is not necessarilypredictive of his behavior when no longer under such supervision" (People v Warren, 42 AD3d 593,594 [2007], lv denied 9 NY3d 810 [2007]; see People v Legall, 63 AD3d 1305, 1306 [2009], lvdenied 13 NY3d 706 [2009]). Defendant further contends that he was improperly assessed15 points for not accepting responsibility, based on his refusal to participate in a certain program.An admission of guilt was a prerequisite to participation in that program, and defendant contendsthat he thereby would be compelled to violate his right against self-incrimination. We reject thatcontention. While defendant stated that he refused "to waive [his] constitutional rights" byadmitting his guilt, we note that the Double Jeopardy Clause protects him from furtherprosecution with respect to any offenses to which the admission of guilt applies, and thus hiscontention is without merit (see Peoplev Palladino, 46 AD3d 864, 865-866 [2007], lv denied 10 NY3d 704 [2008]).Finally, defendant was properly assessed five points for a prior misdemeanor conviction,regardless of when it occurred. Present—Centra, J.P., Peradotto, Lindley, Sconiers andGorski, JJ.