| People v Birch |
| 2012 NY Slip Op 06565 [99 AD3d 422] |
| October 2, 2012 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v KyleBirch, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Martin J. Foncello of counsel), forrespondent.
Order, Supreme Court, New York County (Juan M. Merchan, J.), entered on or aboutJanuary 19, 2011, which adjudicated defendant a level three sexually violent offender under theSex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.
The court properly assessed 15 points under the risk factor for drug or alcohol abuse, becausedefendant's crimes were committed while under the influence of drugs and alcohol, and theevidence of such use was not excessively remote. Defendant's "abstinence," while incarcerated,from using substances that are prohibited in prison was insufficient to predict his postreleasebehavior (see People v Gonzalez, 48AD3d 284, 285 [2008], lv denied 10 NY3d 711 [2008]).
The court properly assessed 20 points under the risk factor for unsatisfactory conduct,including sexual misconduct, while confined. Defendant's prison disciplinary record providedclear and convincing evidence that he repeatedly engaged in lewd behavior directed at femalepersonnel.
Regardless of whether points should have been assessed under the risk factor for failure toaccept responsibility, defendant would still be a level three offender, and we find no basis for adiscretionary downward departure to level two (see People v Pettigrew, 14 NY3d 406, 409 [2010]).Concur—Friedman, J.P., Acosta, Renwick, Richter and Abdus-Salaam, JJ.