PEOPLE v. PERSER (2006)

Appeal by the defendant from an order of the County Court, Westchester County (Bellantoni, J.), dated March 3, 2005, which, after a hearing pursuant to Correction Law article 6-C, designated him a level three sex offender.

ORDERED that the order is affirmed, without costs or disbursements.

The Supreme Court's determination to designate the defendant a level three sex offender was supported by clear and convincing evidence (see Correction Law § 168-n[3] ).   The court properly assessed the defendant 15 points for drug or alcohol abuse based upon the admissions contained in the pre-sentence report (see People v. Davis, 26 A.D.3d 364, 809 N.Y.S.2d 547;  People v. Masters, 19 A.D.3d 387, 796 N.Y.S.2d 133;  People v. Roland, 292 A.D.2d 271, 739 N.Y.S.2d 694).   Furthermore, the grand jury minutes supported the court's assessment of 10 points against the defendant for having had sexual contact with the victim “under clothing.”   In addition, we reject the defendant's contention that the settlement entered into by the parties in the case of Doe v. Pataki, 3 F.Supp.2d 456 barred the court from assessing five points against him in the release environment category.   Although the subject stipulation prohibits points from being assessed in the release environment category against offenders who completed parole or probation prior to redetermination of their risk levels, the record demonstrates that the defendant's term of parole was revoked before completion.