PEOPLE v. WHALEY (2007)

Appeal from an order of the County Court of Chenango County (Sullivan, J.), entered October 4, 2005, which classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act.

In September 2002, defendant pleaded guilty to the crime of sodomy in the second degree in full satisfaction of a three-count indictment and was sentenced to 1 1/212 to 4 1/212 years in prison.   Prior to his release from prison, a risk assessment hearing was conducted at which time County Court considered, among other things, his criminal history, the young age of his victim and evidence of his past alcohol abuse.   Defendant was subsequently classified as a risk level III sex offender pursuant to the Sex Offender Registration Act (see Correction Law art. 6-C).   On this appeal, defendant maintains that he was improperly assessed points under multiple categories on the risk assessment instrument used by County Court to determine his classification.

Inasmuch as County Court's determination is supported by clear and convincing evidence, including the case summary, presentence investigation report and victim impact statement, we disagree and affirm (see People v. Dickison, 24 A.D.3d 980, 981, 805 N.Y.S.2d 198 [2005], lv. denied 6 N.Y.3d 709, 813 N.Y.S.2d 45, 846 N.E.2d 476 [2006] ).   In addition to sexually abusing a nine-year-old child who was asleep at the time of her victimization (see People v. Greene, 13 A.D.3d 991, 992, 787 N.Y.S.2d 466 [2004], lv. denied 5 N.Y.3d 789, 801 N.Y.S.2d 810, 835 N.E.2d 670 [2005] ), defendant's criminal past includes a youthful offender adjudication for attempted robbery in the first degree (see People v. Dort, 18 A.D.3d 23, 26, 792 N.Y.S.2d 236 [2005], lv. denied 4 N.Y.3d 885, 798 N.Y.S.2d 730, 831 N.E.2d 975 [2006] ).   Furthermore, defendant likewise admitted to a history of alcohol abuse.   Accordingly, we cannot say that County Court erred in assessing points under the categories of victim characteristics, drug/alcohol abuse and number and nature of prior crimes.

We have considered defendant's remaining contentions and have determined that they are without merit.

ORDERED that the order is affirmed, without costs.

CARPINELLO, J.

CARDONA, P.J., MERCURE and PETERS, JJ., concur.