PEOPLE v. KELLEY

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Supreme Court, Appellate Division, Fourth Department, New York.

The PEOPLE of the State of New York, Respondent, v. Shawn M. KELLEY, Defendant-Appellant.

Decided: July 02, 2009

PRESENT:  MARTOCHE, J.P., CENTRA, PERADOTTO, GREEN, AND GORSKI, JJ. Timothy P. Donaher, Public Defender, Rochester (James Eckert of Counsel), for Defendant-Appellant. Michael C. Green, District Attorney, Rochester (Nancy A. Gilligan of Counsel), for Respondent.

 Defendant appeals from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.).   Defendant's contention that County Court erred in assessing points under the risk factor for “duration of offense conduct with victim” lacks merit.   We conclude that the People established by the requisite clear and convincing evidence that there was a continuing course of sexual contact (see § 168-n[3];  Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary, at 10 [2006];  see also People v. Wood, 60 A.D.3d 1350, 875 N.Y.S.2d 686).   We further conclude that the court properly assessed 15 points under the risk factor for defendant's history of drug and alcohol abuse inasmuch as the People presented clear and convincing evidence of such a history (see People v. Ramos, 41 A.D.3d 1250, 839 N.Y.S.2d 383, lv. denied 9 N.Y.3d 809, 844 N.Y.S.2d 785, 876 N.E.2d 514;  People v. Vaughn, 26 A.D.3d 776, 777, 809 N.Y.S.2d 718), and defendant presented no evidence of prolonged abstinence “in recent years” (Vaughn, 26 A.D.3d at 777, 809 N.Y.S.2d 718;  see Ramos, 41 A.D.3d 1250, 839 N.Y.S.2d 383).   Finally, defendant failed to preserve for our review his contention that he was entitled to a downward departure from his presumptive risk level (see People v. Ratcliff, 53 A.D.3d 1110, 862 N.Y.S.2d 686, lv. denied 11 N.Y.3d 708, 868 N.Y.S.2d 600, 897 N.E.2d 1084;  People v. Regan, 46 A.D.3d 1434, 1435, 848 N.Y.S.2d 787) and, in any event, that contention lacks merit (see Ratcliff, 53 A.D.3d 1110, 862 N.Y.S.2d 686;  People v. Marks, 31 A.D.3d 1142, 1143, 817 N.Y.S.2d 555, lv. denied 7 N.Y.3d 715, 826 N.Y.S.2d 181, 859 N.E.2d 921).

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

MEMORANDUM: