People v. Liddle

• Decision Date: 29 March 2018
• Docket Number: 522965
• Parties: The PEOPLE of the State of New York, Respondent, v. James C. LIDDLE, Appellant.
• Court: New York Supreme Court — Appellate Division

159 A.D.3d 1286
74 N.Y.S.3d 115

The PEOPLE of the State of New York, Respondent,
v.
James C. LIDDLE, Appellant.

522965

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

Calendar Date: February 14, 2018
Decided and Entered: March 29, 2018

George P. Ferro, Albany, for appellant.

P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), for respondent.

Before: Egan Jr., J.P., Clark, Mulvey, Aarons and Rumsey, JJ.

MEMORANDUM AND ORDER

Mulvey, J.

74 N.Y.S.3d 116

Appeal from an order of the County Court of Albany County (Herrick, J.), entered April 4, 2016, which classified defendant as a risk level two sex offender pursuant to the Sex Offender Registration Act.

Defendant pleaded guilty in Florida to attempted lewd and lascivious assault upon a child in 2000, stemming from his admitted conduct in subjecting a 13–year–old girl to three-way sexual conduct on three separate occasions, with the participation of an 18–year–old codefendant. Defendant later relocated to New York, apparently in 2016, and was required to register as a sex offender. To that end, the People submitted a risk assessment instrument pursuant to the Sex Offender Registration Act (see Correction Law art 6–C [hereinafter SORA] ) assessing 80 points against defendant, presumptively classifying him as a risk level two sex offender. Following a hearing, County Court classified defendant as a risk level two sex offender. Defendant appeals.

We affirm. Under SORA, "[t]he People must establish the proper risk level classification by clear and convincing evidence, which may include reliable hearsay such as the risk assessment instrument, case summary, presentence investigation report and statements provided by the victim to the police" ( People v. Darrah , 153 A.D.3d 1528, 1528, 61 N.Y.S.3d 390 [2017] [internal quotation marks and citation omitted]; see Correction Law § 168–n [3 ]; People v. Mingo , 12 N.Y.3d 563, 571–572, 883 N.Y.S.2d 154, 910 N.E.2d 983 [2009] ). Defendant's sole contention on appeal is that County Court erred in adding 15 points to his score under risk factor 11 based upon his history of alcohol and drug abuse. We cannot agree.

Assessment of points under risk factor 11 is appropriate where an offender has "a history of drug or alcohol abuse" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, risk factor 11 [2006]; accord People v. Palmer , 20 N.Y.3d 373, 378, 960 N.Y.S.2d 719, 984 N.E.2d 917 [2013] ). In assessing points under this risk factor, the People relied

74 N.Y.S.3d 117

upon evidence...