| People v Quinn |
| 2012 NY Slip Op 06791 [99 AD3d 776] |
| October 10, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JacobQuinn, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Maria I. Wager and Steven A. Benderof counsel), for respondent.
Appeal by the defendant from an order of the County Court, Westchester County (Cacace,J.), entered November 1, 2010, which, after a hearing, designated him a level two sex offenderpursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
The defendant's contentions that the procedures employed at his Sex Offender RegistrationAct (hereinafter SORA) risk level assessment hearing violated due process are without merit.
The County Court's designation of the defendant as a level two sex offender is supported byclear and convincing evidence (see Correction Law § 168-n [3]). The County Courtproperly assessed the defendant 10 points under risk factor 8 because he was less than 20 yearsold at the time of his first act of sexual misconduct. Contrary to the defendant's contention, theSORA Risk Assessment Guidelines and Commentary expressly state that an offender's age at thefirst act of sexual misconduct under this risk factor "includes his age at the time of thecommission of the instant offense" (Sex Offender Registration Act: Risk Assessment Guidelinesand Commentary at 13 [2006]). The court also properly assessed the defendant 15 points underrisk factor 11 for a history of drug or alcohol abuse. The People established by clear andconvincing evidence that the defendant had a history of substance abuse, and was abusingmarijuana and/or alcohol at the time of the underlying incident (see Sex OffenderRegistration Act: Risk Assessment Guidelines and Commentary at 15 [2006]; see also People v Crandall, 90 AD3d628, 629-630 [2011]; People vCarpenter, 60 AD3d 833, 833 [2009]; People v Robinson, 55 AD3d 708, 708 [2008]). It is true that,where a defendant "abused drugs and/or alcohol in the distant past, but his more recent history isone of prolonged abstinence, the Board or court may choose to score zero points in this category"(Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 15 [2006]).Here, however, although the defendant claims that his alcohol use is now manageable, there is noevidence in the record demonstrating prolonged abstinence on his part.[*2]
The County Court also properly assessed the defendant10 points under risk factor 12, for failure to accept responsibility for his conduct. The evidencebefore the County Court, specifically the defendant's statements in a letter to the Board ofExaminers of Sex Offenders (hereinafter the Board) written prior to the Board's issuance of itsrecommendations, demonstrated by clear and convincing evidence that the defendant had notaccepted responsibility for his conduct (see Sex Offender Registration Act: RiskAssessment Guidelines and Commentary at 15-16 [2006]; see also People v Thompson, 95 AD3d 977, 978 [2012], lvdenied 19 NY3d 811 [2012]).
The defendant was afforded meaningful representation at the SORA hearing (see Peoplev Baldi, 54 NY2d 137, 147 [1981]; People v Reynolds, 90 AD3d 630, 631 [2011]; People v Bowles, 89 AD3d 171,181 [2011]). Dillon, J.P., Dickerson, Austin and Miller, JJ., concur.