| People v Zavala |
| 2014 NY Slip Op 00644 [114 AD3d 653] |
| February 5, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Ruben Zavala, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Grazia DiVincenzo ofcounsel), for respondent.
Appeal by the defendant from an order of the County Court, Suffolk County (Kahn,J.), dated March 20, 2013, which, after a hearing, designated him a level two sexoffender pursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
In establishing a defendant's risk level pursuant to the Sex Offender Registration Act(see Correction Law art 6-C), the People bear the burden of establishing, by clearand convincing evidence, the facts supporting the determinations sought (seeCorrection Law § 168-n [3]; see also Sex Offender Registration Act: RiskAssessment Guidelines and Commentary at 5 [2006]; People v Pettigrew, 14 NY3d 406, 408 [2010]).
Here, the defendant challenged an assessment of points under risk factor 11, for ahistory of alcohol abuse. In order to meet their burden with respect to the assessment ofpoints under risk factor 11, "the People must show by clear and convincing evidence thatthe offender used alcohol in excess either at the time of the crime or repeatedly in thepast" (People v Palmer, 20NY3d 373, 378 [2013]). The People met that burden through the defendant'sadmission to the Probation Department that he "suspected" that he had a problem withalcohol, as well as through evidence that the defendant had previously participated inoutpatient treatment for alcohol abuse, scored in the "alcoholic" range on the MichiganAlcohol Screening Test upon his incarceration for the instant offense, was referred foralcohol abuse treatment in prison, and was previously convicted of driving while abilityimpaired by alcohol and aggravated driving while intoxicated (see People v Finizio, 100AD3d 977, 978 [2012]; People v Harris, 93 AD3d 704, 705 [2012]; cf. People v Palmer, 20 NY3d373 [2013]).
Accordingly, based on the points assessed, the County Court properly designated thedefendant a level two sex offender. Skelos, J.P., Lott, Cohen and Hinds-Radix, JJ.,concur.