PEOPLE v. BARBER (2019)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:  Defendant appeals from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.).  Contrary to defendant's contention, County Court properly assessed 30 points on the risk assessment instrument (RAI) for risk factor 1 for being armed with a dangerous instrument.  It is well settled that “[t]raditional principles of accessorial liability apply when calculating a sex offender's presumptive risk level” (People v. Rhodehouse, 88 A.D.3d 1030, 1032, 930 N.Y.S.2d 105 [3d Dept. 2011];  see Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 7 [2006] ).  Here, the case summary clearly established that “under principles of accomplice liability (see Penal Law § 20.00), defendant used a dangerous instrument in his commission of the crime[s], in that he forced the victim[s] to submit to ․ sex crime[s] by taking advantage of his ․ accomplice's threatened use of a [knife]” (People v. Jack, 15 A.D.3d 270, 270, 789 N.Y.S.2d 492 [1st Dept. 2005], lv denied 5 N.Y.3d 708, 803 N.Y.S.2d 28, 836 N.E.2d 1151 [2005] ).

Contrary to defendant's further contention, the court properly assessed 15 points under risk factor 11 for a history of alcohol abuse.  The assessment is supported by reliable hearsay contained in the case summary (see People v. Mingo, 12 N.Y.3d 563, 573, 883 N.Y.S.2d 154, 910 N.E.2d 983 [2009] ), which provides that defendant admitted to the personnel of the Department of Corrections and Community Supervision that he had an alcohol problem and was willing to undergo treatment (see People v. Figueroa, 141 A.D.3d 1112, 1113, 33 N.Y.S.3d 812 [4th Dept. 2016], lv denied 28 N.Y.3d 907, 45 N.Y.S.3d 375, 68 N.E.3d 104 [2016] ).  Furthermore, defendant participated in an alcohol treatment program while incarcerated, “thus further supporting the court's assessment of points for a history of ․ alcohol abuse” (People v. Mundo, 98 A.D.3d 1292, 1293, 951 N.Y.S.2d 782 [4th Dept. 2012], lv denied 20 N.Y.3d 855, 959 N.Y.S.2d 125, 982 N.E.2d 1259 [2013] ).  We note that defendant presented no evidence to the contrary but merely pointed to an inconsistent statement in the presentence report wherein he denied that his alcohol consumption was problematic (see Figueroa, 141 A.D.3d at 1113, 33 N.Y.S.3d 812).

We agree with defendant that the People failed to prove by the requisite clear and convincing evidence that the victims were strangers to him and that the court thus erred in assessing 20 points on the RAI for risk factor 7 (see People v. Daniels, 86 A.D.3d 921, 922, 926 N.Y.S.2d 788 [4th Dept. 2011], lv denied 17 N.Y.3d 715, 933 N.Y.S.2d 655, 957 N.E.2d 1159 [2011];  see generally People v. Johnson, 93 A.D.3d 1323, 1324, 940 N.Y.S.2d 758 [4th Dept. 2012] ).  Reducing defendant's score on the RAI by 20 points, however, does not alter his presumptive risk level (see Daniels, 86 A.D.3d at 922, 926 N.Y.S.2d 788).  We therefore conclude that the court properly determined that he is a level three risk.