People v Nelmes

People v Nelmes 2013 NY Slip Op 08235 Decided on December 11, 2013 Appellate Division, Second 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 December 11, 2013
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
THOMAS A. DICKERSON, J.P.
CHERYL E. CHAMBERS
SHERI S. ROMAN
ROBERT J. MILLER, JJ.
2012-03510

[*1]People of State of New York, respondent,

v

Roy E. Nelmes, appellant.




Thomas N.N. Angell, Poughkeepsie, N.Y. (Steven Levine of
counsel), for appellant.
William V. Grady, District Attorney, Poughkeepsie, N.Y.
(Kirsten A. Rappleyea of counsel),
for respondent.


DECISION & ORDER

Appeal by the defendant, as limited by his brief, from so much of an order of the County Court, Dutchess County (Greller, J.), dated March 2, 2012, as, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6-C.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

In establishing a defendant's risk level pursuant to the Sex Offender Registration Act (see Correction Law art 6-C), "the People bear the burden of establishing the facts supporting the determination sought by clear and convincing evidence" (People v King, 80 AD3d 681, 682; see Correction Law § 168-n[3]; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5 [2006]). " [E]vidence 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 Eaton, 105 AD3d 722, 723, quoting People v Crandall, 90 AD3d 628, 629; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5 [2006]).

Here, contrary to the defendant's contention, the County Court properly assessed him 15 points under risk factor 11 for a history of alcohol abuse. The assessment of these points was supported by clear and convincing evidence in the record, including the case summary completed by the Board of Examiners of Sex Offenders and the defendant's presentence report (see People v Crandall, 90 AD3d at 629; People v Harris, 93 AD3d 704, 705; People v Robinson, 55 AD3d 708). Accordingly, the County Court properly designated the defendant a level two sex offender.
DICKERSON, J.P., CHAMBERS, ROMAN and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino [*2]

Clerk of the Court