People v. Oliver

185 N.Y.S.3d 719 (Mem)

PEOPLE of State of New York, respondent,

v.Joseph OLIVER, appellant.

2021–06949

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

Submitted—March 16, 2023

April 12, 2023

Marianne Karas, Thornwood, NY, for appellant.

Miriam E. Rocah, District Attorney, White Plains, NY (Jill Oziemblewski and Raffaelina Gianfrancesco of counsel), for respondent.

MARK C. DILLON, J.P., ROBERT J. MILLER, PAUL WOOTEN, JANICE A. TAYLOR, JJ.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Westchester County (Susan Cacace, J.), dated July 28, 2021, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6–C.

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

In this proceeding pursuant to the Sex Offender Registration Act (Correction Law art 6–C; hereinafter SORA), the Supreme Court, following a hearing, designated the defendant a level three sex offender. The defendant appeals.

"In establishing a defendant's risk level pursuant to SORA, the People bear the burden of establishing the facts supporting the determinations sought by clear and convincing evidence" ( People v. Crandall, 90 A.D.3d 628, 629, 934 N.Y.S.2d 446 ; see Correction Law § 168–n[3] ). "In assessing points, evidence may be derived from the defendant's admissions, the victim's statements, evaluative reports completed by the supervising probation officer, parole officer, or corrections counselor, case summaries prepared by the Board of Examiners of Sex Offenders ..., or any other reliable source, including reliable hearsay" ( People v. Crandall, 90 A.D.3d at 629, 934 N.Y.S.2d 446 ).

Here, contrary to the defendant's contention, in light of his admissions and his referral to alcohol abuse treatment programs, the Supreme Court properly assessed the defendant 15 points under risk factor 11 for alcohol abuse (see People v. Barry, 213 A.D.3d 779, 780, 182 N.Y.S.3d 758 ; People v. Guallpa, 209 A.D.3d 774, 775, 174 N.Y.S.3d 892 ). The court properly assessed these points even though the defendant had abstained from alcohol during his imprisonment (see People v. Adkinson, 175 A.D.3d 612, 104 N.Y.S.3d 911 ; People v. Moultrie, 147 A.D.3d 800, 801, 45 N.Y.S.3d 590 ).

Contrary to the defendant's further contention, he was not deprived of the effective assistance of counsel (see People v. Mizhquiri–Duarte, 211 A.D.3d 977, 978, 180 N.Y.S.3d 596 ; People v. Eaton, 105 A.D.3d 722, 724, 963 N.Y.S.2d 271 ).

The...