| People v Rhodehouse |
| 2010 NY Slip Op 07287 [77 AD3d 1032] |
| October 14, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v DanielRhodehouse, Appellant. |
—[*1] Joseph G. Fazzary, District Attorney, Watkins Glen (Matthew C. Hayden of counsel), forrespondent.
Garry, J. Appeal from an order of the County Court of Schuyler County (Argetsinger, J.),entered October 4, 2009, which classified defendant as a risk level three sex offender and asexually violent offender pursuant to the Sex Offender Registration Act.
In 1985, defendant was convicted in Florida of sexual battery, arising out of an incidentwherein he beat his live-in girlfriend, then restrained and raped her. Shortly after his release onparole, defendant allegedly blackmailed, forcibly restrained and raped another woman, andpleaded guilty to extortion, attempted kidnapping and false imprisonment. Defendant relocated tothis state, following which the Board of Examiners of Sex Offenders prepared a risk assessmentinstrument in which he was assigned 110 points, presumptively placing him in the risk level threecategory under the Sex Offender Registration Act (see Correction Law art 6-C). Both thePeople and defendant challenged the number of points assigned and, after a hearing, CountyCourt assessed defendant 140 points and designated him a risk level three sexually violentoffender. Defendant appeals.
The People shoulder the burden of establishing the proper risk level classification by clearand convincing evidence (see Correction Law § 168-n [3]; People v Parker, 62 AD3d 1195,1196 [2009], lv denied 13 NY3d 704 [2009]). That evidence may include "reliablehearsay [*2]evidence, including the presentence investigationreport, case summary and statements made by the victim" (People v Legall, 63 AD3d 1305, 1306 [2009], lv denied 13NY3d 706 [2009]; see People v Parker, 62 AD3d at 1196).
Here, the People satisfied that burden with regard to the addition of 15 points under riskfactor 11 for drug or alcohol abuse. An assessment of points under that factor is permissible if"an offender has 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]; see People v Lerch, 66AD3d 1088, 1089 [2009], lv denied 13 NY3d 715 [2010]). The case summarycontains defendant's admission that he had a drinking problem, he has a prior conviction fordriving while intoxicated, and alcohol consumption was involved in the events that led to hisconvictions for extortion, attempted kidnapping and false imprisonment. Accordingly, clear andconvincing evidence supports the assessment of 15 points under risk factor 11 (see People v Brownell, 66 AD3d1060, 1061 [2009]; People vVaughn, 26 AD3d 776, 777 [2006]). As defendant does not dispute on appeal that hewas appropriately assessed 95 points under the remaining factors, nor argue that a downwarddeparture was warranted, we find that he was properly classified by County Court as a risk levelthree sex offender.
Mercure, J.P., Malone Jr., McCarthy and Egan Jr., JJ., concur. Ordered that the order isaffirmed, without costs.