| People v Harp |
| 2015 NY Slip Op 03592 [127 AD3d 1529] |
| April 30, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vDaniel L. Harp, Appellant. |
Abbie Goldbas, Utica, for appellant.
John M. Muehl, District Attorney, Cooperstown (Michael F. Getman of counsel), forrespondent.
Peters, P.J. Appeal from an order of the County Court of Otsego County (Burns, J.),entered December 20, 2013, which classified defendant as a risk level three sex offenderand a sexually violent offender pursuant to the Sex Offender Registration Act.
Following a jury trial, defendant was convicted of two counts each of course ofsexual conduct against a child in the second degree and endangering the welfare of achild. In anticipation of his release from prison, the Board of Examiners of SexOffenders presumptively classified defendant as a risk level three sex offender, assessinga total of 110 points on the risk assessment instrument. Following a hearing, CountyCourt classified defendant as a risk level three sex offender and a sexually violentoffender. Defendant now appeals.
We affirm. Initially, although County Court failed to set forth its findings of fact andconclusions of law, as required by Correction Law § 168-n (3), remittal isunnecessary as the court's oral findings "are clear, supported by the record andsufficiently detailed to permit intelligent review" (People v Pavlisak, 115 AD3d 1132, 1132-1133 [2014],lv denied 23 NY3d 907 [2014]; see People v Carter, 106 AD3d 1202, 1202 [2013]).Defendant challenges the 15 points assessed under the history of alcohol abuse categoryon the risk assessment instrument. "An offender who has a substance abuse history orwas abusing drugs and/or alcohol at the time of the offense may be assessed points" (People v Clavette, 96 AD3d1178, 1179 [2012], lv denied 20 NY3d 851 [2012] [citation and emphasisomitted]; see Sex Offender Registration Act: Risk Assessment Guidelines andCommentary at 15 [2006]; People v Roberts, 108 AD3d 947, 948 [2013], lvdenied 22 NY3d 852 [2013]). Here, the assessment of points was supported by clearand convincing evidence in the record, including information in the case summary thatdefendant admittedly abused alcohol during the time period that his course of sexualcontact with the victims was ongoing and that he was recommended for an alcohol abusetreatment program while in prison (see People v Englant, 118 AD3d 1289, 1289 [2014];People v Mundo, 98 AD3d [*2]1292, 1293[2012], lv denied 20 NY3d 855 [2013]). Finally, although there is someconfusion as to whether County Court assessed defendant an additional 10 points forfailing to accept responsibility, presumptively raising his total score from 110 points to120 points, both scores lie within the risk level three category. Accordingly, we declineto disturb the classification of defendant as a risk level three sex offender.
Egan Jr., Rose and Lynch, JJ., concur. Ordered that the order is affirmed, withoutcosts.