| People v Frey |
| 2015 NY Slip Op 00818 [125 AD3d 424] |
| February 3, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v James Frey, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Julia Busetti ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Manu K. Balachandran ofcounsel), for respondent.
Order, Supreme Court, New York County (Michael J. Obus, J.), entered on or aboutJune 3, 2013, which adjudicated defendant a level three sexually violent predicate sexoffender pursuant to the Sex Offender Registration Act (Correction Law art 6-C),unanimously affirmed, without costs.
The court properly assessed 10 points under the risk factor for defendant's age of 20years or less when he committed his first act of sexual misconduct, notwithstanding thatthis was based on a youthful offender adjudication (see People v Wilkins, 77 AD3d 588 [1st Dept 2010], lvdenied 16 NY3d 703 [2011]; see also People v Torres, 103 AD3d 868 [2d Dept 2013],lv denied 21 NY3d 856 [2013]). Contrary to defendant's assertions, CPL 720.35does not prohibit the use of youthful offender adjudications by courts.
The court also properly assessed 15 points under the risk factor for alcohol abuse,based on clear and convincing evidence including defendant's past conviction andpending charges of driving while impaired, and his conceded history of ethanol abuse.The only evidence to suggest that he did not have any history of alcohol abuse weredocuments based on his self-reported answers, which the court properly deemedunreliable in light of the other evidence in the record.
In any event, resolution of defendant's challenges to point assessments is notnecessary to the disposition of this appeal. Even deducting the challenged 25 points,defendant would remain a presumptive level three offender, and even with the reducedpoint score, there is no basis for a downward departure (see People v Gillotti, 23 NY3d841 [2014]), particularly in light of the seriousness of the underlying sex crime, anddefendant's extensive criminal history, which includes the commission of other sexoffenses against both children and adults. We note that [*2]defendant committed the instant offense after twice beingadjudicated a level three sex offender, and that he was sentenced as a second child sexualassault felony offender (see Penal Law § 70.07).Concur—Friedman, J.P., Andrias, Saxe, Richter and Gische, JJ.