| People v Fredendall |
| 2011 NY Slip Op 03425 [83 AD3d 1545] |
| April 29, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v BrienFredendall, Appellant. |
—[*1] Jon E. Budelmann, District Attorney, Auburn (Heather M. Destefano of counsel), forrespondent.
Appeal from an order of the Cayuga County Court (Mark H. Fandrich, A.J.), entered May 10,2010. 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 against him under the risk factor fordrug or alcohol abuse is not supported by the requisite clear and convincing evidence (seegenerally § 168-n [3]; Sex Offender Registration Act: Risk Assessment Guidelines andCommentary, at 15 [2006]). Defendant's two prior convictions of driving while ability impaired,which arose from arrests for driving while intoxicated and were "alcohol-related offenses,"warrant a finding that defendant has a history of alcohol abuse, despite the fact that thoseconvictions "predated the underlying offense by several years" (People v Goodwin, 49 AD3d 619,620 [2008], lv denied 10 NY3d 713 [2008], rearg denied 11 NY3d 761 [2008]).Defendant failed to preserve for our review his further contention that he was improperlyassessed 30 points under the risk factor for age of the victims based on the fact that some of hisvictims, i.e., children depicted in the child pornography he possessed, were 10 years old oryounger (see generally People vSmith, 17 AD3d 1045 [2005], lv denied 5 NY3d 705 [2005]). Finally, we rejectdefendant's contention that County Court abused its discretion in denying his request for adownward departure, inasmuch as defendant failed to present "clear and convincing evidence ofthe existence of special circumstances warranting a downward departure" (People v Marks, 31 AD3d 1142,1143 [2006], lv denied 7 NY3d 715 [2006]). Present—Centra, J.P., Fahey,Lindley, Gorski and Martoche, JJ.