People v Kelly

People v Kelly 2010 NY Slip Op 00395 [69 AD3d 498] January 21, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 10, 2010

The People of the State of New York, Respondent,
v
Benjamin Kelly, Appellant.

—[*1] Robert S. Dean, Center for Appellate Litigation, New York (Bruce D. Austern of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Craig A. Ascher of counsel), for respondent.

Order, Supreme Court, New York County (Arlene D. Goldberg, J.), entered on or about September 12, 2008, which adjudicated defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

Clear and convincing evidence supports the court's assessment of 15 points under the risk factor for history of drug or alcohol abuse. Defendant identified himself to the Department of Correctional Services as a person in need of treatment for a substance abuse problem, and not merely a casual user of drugs and alcohol, and this admission led to his placement in a substance abuse program (see People v Schlau, 60 AD3d 529 [2009], lv denied 12 NY3d 712 [2009]). Defendant's present explanations for his acknowledgment of substance abuse are speculative. Defendant also relies on the report of a defense psychiatrist that was prepared at the time of defendant's 2002 sentencing on the underlying sex crime conviction. However, those portions of the report minimizing defendant's use of drug and alcohol are based entirely on defendant's statements, which were self-serving, ambiguous, and inconsistent with contemporaneous statements defendant made to the probation officer who prepared the presentence report. Concur—Gonzalez, P.J., Tom, Sweeny, Catterson and Abdus-Salaam, JJ.