| People v Roberts |
| 2013 NY Slip Op 05341 [108 AD3d 947] |
| July 18, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vJeffrey R. Roberts, Appellant. |
—[*1] James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler ofcounsel), for respondent.
Garry, J. Appeal from an order of the County Court of Saratoga County (Scarano, J.),entered March 14, 2012, which classified defendant as a risk level II sex offender and asexually violent offender pursuant to the Sex Offender Registration Act.
After defendant's conviction following a jury trial was overturned by this Court andthe indictment sent back for retrial (People v Roberts, 66 AD3d 1135 [2009]), defendantpleaded guilty to the crimes of sodomy in the first degree (two counts) and sexual abusein the first degree (three counts). In accord with the negotiated plea bargain, CountyCourt sentenced defendant to an aggregate prison term of 5½ years followed byfive years of postrelease supervision. Prior to defendant's release, the Board ofExaminers of Sex Offenders prepared a risk assessment instrument pursuant to the SexOffender Registration Act (see Correction Law art 6-C) recommending thatdefendant be classified as a risk level II sex offender and a sexually violent offender.Following a hearing, County Court adopted the Board's recommendation. Defendantappeals, and we affirm.
Defendant contends that he should not have been assessed points under the history ofalcohol abuse category of the risk assessment instrument and that County Courtimproperly considered testimony from the prior jury trial in making its determination."An offender who has a substance abuse history or was abusing drugs and/or alcoholat the time of the offense may be assessed points" in this category (People v Clavette, 96 AD3d1178, 1179 [2012], lv denied 20 [*2]NY3d851 [2012] [additional emphasis added and citations omitted]; see People v Lerch, 66 AD3d1088, 1089 [2009], lv denied 13 NY3d 715 [2010]). The victim's statementto police as well as the presentence investigation report reflect that defendant and thevictim had been drinking at the time of the offenses to the point where they were unableto drive and had "passed out" due to intoxication. We find that this evidence providessufficient proof that defendant was abusing alcohol at the time of the offenses and was,therefore, properly assessed the 15 additional points and determined to be a risk level IIsex offender (see People v Clavette, 96 AD3d at 1179; People v Lerch,66 AD3d at 1089). In light of this determination, we do not reach defendant's remainingcontention.
Peters, P.J., Rose and Stein, JJ., concur. Ordered that the order is affirmed, withoutcosts.