People v Pressley

People v Pressley 2017 NY Slip Op 07226 Decided on October 17, 2017 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 17, 2017
Tom, J.P., Richter, Andrias, Gesmer, Singh, JJ.
4706 1245/96

[*1]The People of the State of New York, Respondent,

v

Terry Pressley, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Michael J. Yetter of counsel), for respondent.

Order, Supreme Court, New York County (Ruth Pickholz, J.), entered on or about February 23, 2015, which adjudicated defendant a level three sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The court properly assessed 15 points under the risk factor for alcohol abuse. Such an assessment may be based on alcohol abuse at the time of the underlying sex crime (People v Palmer, 20 NY3d 373, 378-379 [2013]). Here, the case summary and the victim's grand jury testimony provided clear and convincing evidence that defendant committed the second of two sex offenses while intoxicated. In particular, the victim's description of defendant's condition and behavior supported the inference that the sex crime was linked to his excessive consumption of alcohol (see People v Andrade, 124 AD3d 533 [1st Dept 2015], lv denied 25 NY3d 903 [2015]).

Assuming, without deciding, that the state and federal standards for effective assistance at a criminal trial apply to a civil sex offender proceeding (see People v Reid, 59 AD3d 158 [1st Dept 2009], lv denied 12 NY3d 708 [2009]), we conclude that defendant received effective assistance at the classification hearing. Defendant has not shown that he was prejudiced by his attorney's failure to make additional arguments at the hearing. We also find no basis for a downward departure (see generally People v Gillotti, 23 NY3d 841 [2014]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 17, 2017

CLERK