| People v Gallagher |
| 2015 NY Slip Op 04897 [129 AD3d 1252] |
| June 11, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vJoseph Gallagher, Appellant. |
Linda M. Campbell, Syracuse, for appellant.
William G. Gabor, District Attorney, Wampsville (Elizabeth S. Healy of counsel), forrespondent.
Peters, P.J. Appeal from an order of the County Court of Madison County(McDermott, J.), entered March 3, 2014, which classified defendant as a risk level threesex offender pursuant to the Sex Offender Registration Act.
In 1994, defendant was convicted following a jury trial of sodomy in the thirddegree. He was thereafter sentenced as a second felony offender to an aggregate prisonterm of 2 to 4 years, to run consecutively with a 4 to 8-year sentence imposed upon his1993 conviction of two counts of sodomy in the third degree. In anticipation of hisrelease from prison in 2002, a hearing was held pursuant to the Sex OffenderRegistration Act (see Correction Law art 6-C) to determine defendant's risk levelwith regard to his 1993 conviction; no such hearing was held at the time with regard todefendant's 1994 conviction. Following the hearing, defendant was classified as a risklevel three sex offender and was conditionally released on parole shortly thereafter. In2005, defendant's parole was revoked upon his convictions of various non-sex crimes,and he was again sentenced to a term of imprisonment.
Prior to his release from prison in 2014, the Board of Examiners of Sex Offenderslearned that a risk level determination was never undertaken with regard to defendant's1994 sodomy conviction and, accordingly, prepared a risk assessment instrumentregarding that crime. Although the 100 points assessed therein classified defendant as arisk level two sex offender, the Board noted that his prior felony conviction for a sexoffense constituted an override factor presumptively subjecting him to a risk level threeclassification. Defendant moved to dismiss the [*2]instantrisk level classification proceeding on the ground that the more than 11-year delay inrendering a risk level determination on the 1994 conviction would operate to violate hisright to due process. Following a hearing, County Court issued a written order adoptingthe People's recommendation and classifying defendant as a risk level three sex offenderwith regard to the 1994 conviction. Defendant appeals.
Defendant was not denied his right to due process as a result of the delay between hisconditional release in 2002 and the 2014 classification proceeding relating to his 1994conviction. "It is well settled that SORA is regulatory rather than criminal in nature andis not intended to serve as a form of punishment" (People v Wilkes, 53 AD3d 1073, 1074 [2008], lvdenied 11 NY3d 710 [2008] [citation omitted]; see People v Gravino, 14 NY3d 546, 556-557 [2010];People v Stevens, 91 NY2d 270, 275 [1998]). As such, "the due processprotections required for a risk level classification proceeding are not as extensive as thoserequired in a plenary criminal or civil trial" (Doe v Pataki, 3 F Supp 2d 456, 470[1998] [internal quotation marks and citation omitted]; accord People v Akinpelu, 126AD3d 1451, 1452 [2015]; People v Gutierrez-Lucero, 103 AD3d 89, 98 [2012], lvdismissed 20 NY3d 1094 [2013]). Notably, while Correction Law article 6-Crequires that the Board make a risk level classification recommendation to the sentencingcourt and that the court, in turn, render a risk level determination within a specified timeprior to the sex offender's discharge or release (see Correction Law§§ 168-l [6]; 168-n [2]), the Legislature has directed that the failure todo so within the time periods specified "shall not . . . prevent a court frommaking a determination regarding the sex offender's level of notification and whethersuch offender is required by law to be registered" (Correction Law § 168-l[8]). Considering that defendant was already under a life-long obligation to register as arisk level three sex offender as a result of the 2002 risk level classification, as well as thefact that he was reincarcerated for the majority of the 11-year hiatus in rendering theinstant risk level determination, we are unable to conclude that the delay was" 'so outrageously arbitrary as to constitute [a] gross abuse of governmentalauthority' " (People v Wilkes, 53 AD3d at 1074, quoting People v Meyers, 16 Misc 3d115, 118 [2007]; see Peoplev Martin, 119 AD3d 1385, 1385 [2014], lv denied 24 NY3d 906 [2014];compare People v Gregory,71 AD3d 1559, 1560 [2010]).
Nor are we persuaded that County Court erred in imposing 15 points under riskfactor 11 for drug or alcohol abuse. An assessment of points under that factor ispermissible "if an offender has a substance abuse history or was abusing drugs and oralcohol at the time of the offense" (Sex Offender Registration Act: Risk AssessmentGuidelines and Commentary at 15 [2006]; see People v Harp, 127 AD3d 1529, 1530 [2015]).Defendant's admissions that he consumed alcohol to self-medicate and experiencedblackouts from excessive alcohol use, revealed in the case summary, constitute therequisite clear and convincing evidence to support the assessment of points under thiscategory (see People v Harp, 127 AD3d at 1530; People v Rhodehouse, 77AD3d 1032, 1033 [2010], lv denied 16 NY3d 701 [2011]; People v Swain, 46 AD3d1157, 1158-1159 [2007]; People v Whaley, 38 AD3d 1106, 1107 [2007]). Finally,defendant's contention that he was improperly assigned points under risk factor 10 forrecency of prior offense was not preserved for our review (see People v Pace, 121 AD3d1315, 1316 [2014], lv denied 24 NY3d 914 [2015]; People v Beames, 71 AD3d1300, 1301 [2010]; Peoplev Coleman, 45 AD3d 1118, 1118 [2007], lv denied 10 NY3d 705[2008]). In any event, even were we to accept his challenges to the 25 points assigned forboth of these risk factors, defendant would still remain a presumptive risk level two sexoffender subject to the presumptive override to a risk level three classification.
Garry, Egan Jr. and Lynch, JJ., concur. Ordered that the order is affirmed, withoutcosts.