PEOPLE v. LIDDLE (2018)

MEMORANDUM AND ORDER

Appeal from an order of the County Court of Albany County (Herrick, J.), entered April 4, 2016, which classified defendant as a risk level two sex offender pursuant to the Sex Offender Registration Act.

Defendant pleaded guilty in Florida to attempted lewd and lascivious assault upon a child in 2000, stemming from his admitted conduct in subjecting a 13–year–old girl to three-way sexual conduct on three separate occasions, with the participation of an 18–year–old codefendant.  Defendant later relocated to New York, apparently in 2016, and was required to register as a sex offender.  To that end, the People submitted a risk assessment instrument pursuant to the Sex Offender Registration Act (see Correction Law art 6–C [hereinafter SORA] ) assessing 80 points against defendant, presumptively classifying him as a risk level two sex offender.  Following a hearing, County Court classified defendant as a risk level two sex offender.  Defendant appeals.

We affirm.  Under SORA, “[t]he People must establish the proper risk level classification by clear and convincing evidence, which may include reliable hearsay such as the risk assessment instrument, case summary, presentence investigation report and statements provided by the victim to the police” (People v. Darrah, 153 A.D.3d 1528, 1528, 61 N.Y.S.3d 390 [2017] [internal quotation marks and citation omitted];  see Correction Law § 168–n [3];  People v. Mingo, 12 N.Y.3d 563, 571–572, 883 N.Y.S.2d 154, 910 N.E.2d 983 [2009] ).  Defendant's sole contention on appeal is that County Court erred in adding 15 points to his score under risk factor 11 based upon his history of alcohol and drug abuse.  We cannot agree.

Assessment of points under risk factor 11 is appropriate where an offender has “a history of drug or alcohol abuse” (Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary, risk factor 11 [2006];  accord People v. Palmer, 20 N.Y.3d 373, 378, 960 N.Y.S.2d 719, 984 N.E.2d 917 [2013] ).  In assessing points under this risk factor, the People relied upon evidence that defendant had been required to obtain substance abuse treatment as a result of the underlying crime and that, in the 10 years prior to the SORA hearing, he had been convicted of criminal possession of marihuana and driving under the influence of alcohol.  In his written submission in these proceedings, defendant admitted that, in 2011, he had experienced an “alcohol fueled downward spiral” (see People v. Hernaiz, 152 A.D.3d 803, 804, 60 N.Y.S.3d 73 [2017], lv denied 30 N.Y.3d 906, 2017 WL 5560486 [2017];  People v. Price, 148 A.D.3d 847, 847, 48 N.Y.S.3d 725 [2017], lv denied 29 N.Y.3d 910, 2017 WL 2435097 [2017] ).  While he has reportedly been sober since 2012 and remained in active substance abuse treatment as of the 2016 SORA hearing, we find that points were appropriately assessed under risk factor 11 based upon his extensive history of alcohol abuse (see People v. Morrell, 139 A.D.3d 835, 836, 31 N.Y.S.3d 561 [2016], lv dismissed and denied 28 N.Y.3d 947, 38 N.Y.S.3d 516, 60 N.E.3d 411 [2016];  People v. Snyder, 133 A.D.3d 1052, 1052, 19 N.Y.S.3d 631 [2015], lv denied 27 N.Y.3d 902, 2016 WL 1203420 [2016];  People v. Griest, 133 A.D.3d 1062, 1062, 19 N.Y.S.3d 201 [2015];  People v. Gallagher, 129 A.D.3d 1252, 1254, 11 N.Y.S.3d 712 [2015], lv denied 26 N.Y.3d 908, 2015 WL 5972484 [2015];  cf. People v. Saunders, 156 A.D.3d 1138, 1139–1140, 67 N.Y.S.3d 351 [2017];  People v. Davis, 135 A.D.3d 1256, 1256, 23 N.Y.S.3d 492 [2016], lv denied 27 N.Y.3d 904, 2016 WL 1691883 [2016];  People v. Ross, 116 AD3d 1171, 1172, 983 N.Y.S.2d 364 [2014] ).  Notwithstanding his argument that he no longer represents a danger to society, it has been recognized that “[a]lcohol and drug abuse are highly associated with sex offending ․ not [because they] cause deviate behavior [but,] rather, [because they] serve[ ] as a disinhibitor and therefore [are] a precursor to offending” (Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 15 [2006];  see Correction Law § 168–l [5][a][ii] ).¹  Accordingly, we find that defendant was properly classified as a risk level two sex offender.

ORDERED that the order is affirmed, without costs.

FOOTNOTES

1.   Although defendant requested a downward departure to a risk level one classification at the SORA hearing, he did not brief this issue, which we deem to have been abandoned (see People v. Shackelton, 117 A.D.3d 1283, 1284 n. 1, 985 N.Y.S.2d 765 [2014] ).

Mulvey, J.

Egan Jr., J.P., Clark, Aarons and Rumsey, JJ., concur.