| People v Good |
| 2011 NY Slip Op 06960 [88 AD3d 1037] |
| October 6, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Moses A.Good, Appellant. |
—[*1] Christopher I. Simser Sr., Special Prosecutor, Cortland, for respondent.
Garry, J. Appeal from an order of the County Court of Broome County (Smith, J.), enteredJune 25, 2010, which classified defendant as a risk level two sex offender and a sexually violentoffender pursuant to the Sex Offender Registration Act.
Defendant pleaded guilty to one count of sexual abuse in the first degree in full satisfactionof an indictment that also charged him with sexual abuse in the third degree and endangering thewelfare of a child. Defendant was sentenced to three years in prison followed by five years ofpostrelease supervision. Prior to his release from prison, the Board of Examiners of SexOffenders completed a risk assessment instrument, calculating a score of 80 points andpresumptively classifying defendant as a risk level two sex offender (see Correction Lawart 6-C). Following a hearing, County Court also calculated defendant's risk assessment score at80 points, determined that there was no basis for departure and classified defendant a risk leveltwo sex offender. Defendant appeals.
The People must establish the proper risk level classification by clear and convincingevidence, which may include reliable hearsay such as the risk assessment instrument, casesummary, presentence investigation report and statements provided by the victim to police (see People v Stewart, 77 AD3d1029, 1030 [2010]; People vArroyo, 54 AD3d 1141, 1141 [2008], lv denied 11 NY3d 711 [2008]). In thiscase, defendant's classification as a risk level two sex offender is supported by the evidence.County Court's assessment of 15 points for drug or [*2]alcoholabuse is supported by evidence of defendant's admitted use of drugs and alcohol and history oftwo drug-related offenses (see People vNichols, 80 AD3d 1013, 1013 [2011]; People v Rhodehouse, 77 AD3d 1032, 1033 [2010], lvdenied 16 NY3d 701 [2011]), and defendant's participation in a substance abuse treatmentprogram does not require a different result (see People v Warren, 42 AD3d 593, 594 [2007], lv denied9 NY3d 810 [2007]). Finally, we do not find that the court abused its discretion in denyingdefendant's request for a downward departure from the presumptive risk level (see People vNichols, 80 AD3d at 1014; People v Warren, 42 AD3d at 595; People v Mothersell, 26 AD3d620, 621 [2006]).
Peters, J.P., Rose, Lahtinen and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.