| People v Belile |
| 2013 NY Slip Op 05257 [108 AD3d 890] |
| July 11, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vJoseph J. Belile, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Jonathan L. Becker of counsel), forrespondent.
Garry, J. Appeal from an order of the County Court of St. Lawrence County(Richards, J.), entered November 28, 2011, which classified defendant as a risk level IIIsex offender pursuant to the Sex Offender Registration Act.
In April 2008, defendant pleaded guilty to rape in the third degree stemming from hissexual conduct with a 14-year-old girl, and he was thereafter sentenced as a secondfelony offender to a prison term of 2 to 4 years. In preparation for his release fromprison, the Board of Examiners of Sex Offenders recommended, as relevant here, thatdefendant be classified as a risk level III sex offender pursuant to the Sex OffenderRegistration Act (see Correction Law art 6-C). Following a hearing, CountyCourt classified defendant as a risk level III sex offender and denied his request for adownward departure. Defendant appeals and we affirm.
The People are required to establish the risk level classification by clear andconvincing evidence, and may use reliable hearsay—such as the presentenceinvestigation report, a victim statement, and the case summary—to meet theirburden (see People vMadera, 100 AD3d 1111, 1112 [2012]; People v Good, 88 AD3d 1037, 1037 [2011], lvdenied 18 NY3d 802 [2011]). Here, we reject defendant's contention that he wasimproperly assessed 15 points for drug use, as points may be assessed when " 'anoffender has a substance abuse history or was abusing drugs and or alcohol at the time ofthe offense' " (People vRhodehouse, 77 AD3d 1032, 1033 [2010], lv [*2]denied 16 NY3d 701 [2011], quoting Sex OffenderRegistration Act: Risk Assessment Guidelines and Commentary at 15 [2006]; see People v Clavette, 96AD3d 1178, 1179 [2012], lv denied 20 NY3d 851 [2012]). In her statement,the victim recounted that defendant had provided and smoked marihuana with her onmultiple occasions, including the day of their last sexual encounter, and defendantadmitted that he was under the influence of marihuana "most of the time," including amajority of the time during which the instant offense was committed. Similarlyunavailing is defendant's claim that he was improperly assessed 10 points for his conductwhile confined. Although the case summary curiously characterized his disciplinaryrecord as "satisfactory," the fact that he had 15 tier II and six serious tier III infractionswhile incarcerated and that this excessive disciplinary record prevented his participationin sex offender and aggression replacement programming supported the assessment ofpoints under this category (seePeople v Bove, 52 AD3d 1124, 1125 [2008]).
We reject defendant's further contention that County Court erred in declining todepart from the presumptive risk level. Downward departure is warranted when it isestablished that there are mitigating factors not taken into account by the guidelines (see People v King, 72 AD3d1363, 1364 [2010]). Here, the lack of forcible compulsion was addressed as nopoints were assessed under risk factor 1 (see People v Barnett, 71 AD3d 1296, 1297 [2010]).Further, the fact that defendant was 23 years of age at the time of his sexual involvementwith the victim does not lead to a contrary finding. This matter is readily distinguishedfrom the precedent upon which defendant relies—that a downward departure maybe warranted where there is no forcible compulsion and the defendant and victim areclose in age (see People vGoossens, 75 AD3d 1171, 1172 [2010]; People v Weatherley, 41 AD3d 1238, 1239 [2007]; People v Santiago, 20 AD3d885, 886 [2005])—based upon his significant criminal history, his failure toengage in sex offender or other programs as a result of his prison disciplinary problems,and the fact that he was on parole at the time of committing this offense (see People v Greene, 93 AD3d1230, 1230 [2012], lv denied 19 NY3d 812 [2012]; People vBarnett, 71 AD3d at 1297).
Peters, P.J., Rose and Stein, JJ., concur. Ordered that the order is affirmed, withoutcosts.