People v. Nichols

• Decision Date: 20 January 2011
• Citation: 915 N.Y.S.2d 374,80 A.D.3d 1013
• Parties: The PEOPLE of the State of New York, Respondent, v. William F. NICHOLS, Appellant.
• Court: New York Supreme Court — Appellate Division

915 N.Y.S.2d 374
80 A.D.3d 1013

The PEOPLE of the State of New York, Respondent,
v.
William F. NICHOLS, Appellant.

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

Jan. 20, 2011.

915 N.Y.S.2d 375

Cynthia Feathers, Saratoga Springs, for appellant.

James E. Conboy, District Attorney, Fonda (Sarah J. Leszcynski of counsel), for respondent.

Before: PETERS, J.P., ROSE, LAHTINEN, KAVANAGH and EGAN JR., JJ.

LAHTINEN, J.

80 A.D.3d 1013

Appeal from an order of the County Court of Montgomery County (Catena, J.), entered December 30, 2009, which classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act.

Defendant was convicted of numerous crimes arising from sexual acts he perpetrated upon his stepdaughter starting when she was 10 years old and continuing for several years ( see People v. Nichols, 257 A.D.2d 851, 684 N.Y.S.2d 662 [1999], lv. denied 93 N.Y.2d 901, 689 N.Y.S.2d 713, 711 N.E.2d 989 [1999]; see also People v. Nichols, 289 A.D.2d 605, 733 N.Y.S.2d 778 [2001], lv. denied 98 N.Y.2d 639, 744 N.Y.S.2d 768, 771 N.E.2d 841 [2002] ). Prior to his release from prison, the Board of Examiners of Sex Offenders prepared a risk assessment instrument in which defendant's score of 120 presumptively classified him as a risk level III sex offender ( see Correction Law art 6-C), and the Board recommended no departure from this classification. Following a hearing, County Court adopted the Board's recommendation. Defendant appeals.

Initially, defendant argues that the 15-point assessment for alcohol abuse was not adequately supported by the evidence. A defendant's risk level classification must be established by clear and convincing evidence, and reliable hearsay may be used in determining the classification ( see People v. Hazen, 47 A.D.3d 1091, 1092, 850 N.Y.S.2d 267 [2008]; People v. Warren, 42 A.D.3d 593, 594, 840 N.Y.S.2d 176 [2007], lv. denied 9 N.Y.3d 810, 844 N.Y.S.2d 786, 876 N.E.2d 515 [2007] ). The presentence report indicated that defendant had acknowledged that he began drinking in his early teens, he admitted to having an alcohol problem, he had two prior arrests for driving while intoxicated and he had scored as an alcoholic on a screening test administered when he was in prison. Moreover, the victim testified at trial that defendant had been drinking on several occasions when he abused her. This proof was sufficient to uphold the point assessment for alcohol abuse ( see People v. Luebbert, 73 A.D.3d 1399, 1400, 901 N.Y.S.2d 754 [2010]; People v. Barrier, 58 A.D.3d 1086, 1087-1088, 872 N.Y.S.2d 219 [2009], lv. denied 12 N.Y.3d 707, 879 N.Y.S.2d 54, 906 N.E.2d 1088 [2009]; People v. Longtin, 54...