People v. RhodehousePeople v. Rhodehouse
In 1985, defendant was convicted in Florida of sexual battery, arising out of an incident wherein he beat his live-in girlfriend, then restrained and raped her. Shortly after his release on parole, defendant allegedly blackmailed, forcibly restrained and raped another woman, and pleaded guilty to extortion, attempted kidnapping and false imprisonment. Defendant relocated to this state, following which the Board of Examiners of Sex Offenders prepared a risk assessment instrument in which he was assigned 110 points, presumptively placing him in the risk level three category under the
The People shoulder the burden of establishing the proper risk level classification by clear and convincing evidence (see
Here, the People satisfied that burden with regard to the addition of 15 points under risk factor 11 for drug or alcohol abuse. An assessment of points under that factor is permissible if “an offender has a substance abuse history or was abusing drugs and or alcohol at the time of the offense” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 15 [2006]; see People v Lerch, 66 AD3d 1088, 1089 [2009], lv denied 13 NY3d 715 [2010]). The case summary contains defendant‘s admission that he had a drinking problem, he has a prior conviction for driving while intoxicated, and alcohol consumption was involved in the events that led to his convictions for extortion, attempted kidnapping and false imprisonment. Accordingly, clear and convincing evidence supports the assessment of 15 points under risk factor 11 (see People v Brownell, 66 AD3d 1060, 1061 [2009]; People v Vaughn, 26 AD3d 776, 777 [2006]). As defendant does not dispute on appeal that he was appropriately assessed 95 points under the remaining factors, nor argue that a downward departure was warranted, we find that he was properly classified by County Court as a risk level three sex offender.