People v. Clavette

• Decision Date: 14 June 2012
• Court: New York Supreme Court — Appellate Division
• Parties: The PEOPLE of the State of New York, Respondent, v. John M. CLAVETTE, Appellant.

96 A.D.3d 1178
946 N.Y.S.2d 310
2012 N.Y. Slip Op. 04798

The PEOPLE of the State of New York, Respondent,
v.
John M. CLAVETTE, Appellant.

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

June 14, 2012.

[946 N.Y.S.2d 311]

James J. Brearton, Latham, for appellant.

James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler of counsel), for respondent.

Before: PETERS, P.J., LAHTINEN, SPAIN, KAVANAGH and McCARTHY, JJ.

PETERS, P.J.

[96 A.D.3d 1178]Appeal from an order of the County Court of Saratoga County (Scarano, J.), entered March 3, 2010, which [96 A.D.3d 1179]classified defendant as a risk level III sex offender and a sexually violent offender pursuant to the Sex Offender Registration Act.

In March 2003, defendant was charged with three counts of sodomy in the first degree, four counts of sexual abuse in the second degree and two counts of endangering the welfare of a child based upon allegations that he engaged in numerous oral and anal sexual acts with a 12–year–old male relative, at times in the presence of a 13–year–old female relative. He thereafter pleaded guilty to one count of attempted sodomy in the first degree in full satisfaction of the charges and was sentenced by County Court to a term of 7 1/2 years in prison, plus a period of postrelease supervision. The Board of Examiners of Sex Offenders prepared a risk assessment instrument pursuant to the Sex Offender Registration Act ( see

[946 N.Y.S.2d 312]

Correction Law art. 6–C) prior to defendant's release recommending that he be classified as a risk level III sex offender and a sexually violent offender. After a hearing, County Court adopted the Board's recommendation. Defendant appeals, and we affirm.

Initially, defendant's arguments pertaining to his judgment of conviction are not properly before this Court and will not be addressed ( seeCPL 1.20[15]; 450.10; see e.g. People v. Smith, 15 N.Y.3d 669, 673, 917 N.Y.S.2d 614, 942 N.E.2d 1039 [2010];People v. Ayala, 72 A.D.3d 1577, 1578, 898 N.Y.S.2d 912 [2010],lv. denied15 N.Y.3d 816, 908 N.Y.S.2d 148, 934 N.E.2d 882 [2010];People v. Wright, 53 A.D.3d 963, 963, 862 N.Y.S.2d 623 [2008],lv. denied11 N.Y.3d 710, 872 N.Y.S.2d 72, 900 N.E.2d 555 [2008] ). Turning to the merits, we reject defendant's assertion that he was improperly assessed points for his alcohol abuse because his drinking habits are unrelated to his offense. An offender who has a substance abuse history or was abusing drugs and/or alcohol at the time of the offense may be assessed points ( see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 15 [2006]; People v. Rhodehouse, 77 A.D.3d 1032, 1033, 908 N.Y.S.2d 769 [2010],lv. denied16 N.Y.3d 701, 2011 WL 32505 [2011];People v. Brownell, 66 A.D.3d 1060, 1061,...