People v Wassilie |
2022 NY Slip Op 00103 [201 AD3d 1117] |
January 6, 2022 |
Appellate Division, Third Department |
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
The People of the State of New York,
Respondent, v Sam Wassilie, Appellant. |
Angela Kelley, Albany, for appellant.
Paul Czajka, District Attorney, Hudson (James A. Carlucci of counsel), for respondent.
Reynolds Fitzgerald, J. Appeal from an order of the County Court of Columbia County (Koweek, J.), entered April 13, 2021, which classified defendant as a risk level three sex offender pursuant to the Sex Offender Registration Act.
In 2015, defendant pleaded guilty to 10 counts of unlawful surveillance in the second degree
and was sentenced to a maximum aggregate prison term of 2
Initially, as the People concede and our review of the record confirms, County Court erred in assessing points under risk factors 4 and 10. The assessment of points under risk factor 4 is warranted where a defendant has engaged in "either (i) two or more acts of sexual contact, at least one of which is an act of sexual intercourse, oral sexual conduct, anal sexual conduct, or aggravated sexual contact, which acts are separated in time by at least 24 hours, or (ii) three or more acts of sexual contact over a period of at least two weeks" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 10 [2006] [emphases added]). For purposes of risk classification, the Penal Law definition of terms is used (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 8 [2006]). The record does not reflect that defendant's crimes of conviction, for unlawful surveillance in the second degree (see Penal Law § 250.45 [1], [3] [a]), involved any form of sexual contact (see Penal Law § 130.00 [3]). In the absence of any record evidence that defendant engaged in sexual contact with any victim, 20 points should not have been assessed under risk factor 4 (see People v Carmichael, 192 AD3d 924, 925 [2021]; People v Dilillo, 162 AD3d 915, 916 [2018], lv denied 32 NY3d 905 [2018]; cf. People v Masi, 195 AD3d 1328, 1328-1329 [2021]; People v Snay, 122 AD3d 1012, 1013 [2014[*2]], lv denied 24 NY3d 916 [2015]). Likewise, the record lacks any evidence that defendant had a "prior felony or sex crime" within three years of the unlawful surveillance sex offenses and, thus, the court erred in assessing 10 points under risk factor 10 (see People v Green, 192 AD3d 927, 927 [2021], lv denied 37 NY3d 910 [2021]; People v Williams, 186 AD3d 883, 884 [2020], lv denied 36 NY3d 903 [2020]; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 14 [2006]).[FN2]
However, we find that County Court properly followed the Board's recommendation in assessing five points under risk factor 9 for defendant's criminal history that did not include a felony or sex crime, based upon his conviction for driving while intoxicated. Contrary to defendant's contention, the case summary, which reflects that it was based in part upon his inmate file and the presentence investigation,[FN3] constitutes the requisite reliable hearsay that establishes his criminal history by clear and convincing evidence (see People v Pidel, 195 AD3d 1321, 1322 [2021], lv denied 37 NY3d 915 [2021]). As the assessment of five points in this category is appropriate if a defendant "has any criminal history other than a felony or sex crime" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 13 [2006]; see People v Darrah, 153 AD3d 1528, 1529 [2017]), this assessment was authorized.
Defendant also challenges County Court's assessment of 15 points under risk factor 11 for drug or alcohol abuse. The assessment of points under risk factor 11 is warranted "if an offender has a substance abuse history or was abusing drugs and[/]or alcohol at the time of the offense" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 15 [2006]; see People v Pidel, 195 AD3d at 1324; People v Williamson, 181 AD3d 1100, 1101 [2020]). There is no indication in the record that drugs or alcohol played a role in defendant's sex crimes (cf. People v Truelove, 191 AD3d 1076, 1077 [2021]), and we agree with defendant that the assertions in the case summary regarding his self-reported alcohol consumption from ages 17 through 22 were too remote in time to support the assessment of points under risk factor 11 at the age of 39 (see People v Palmer, 20 NY3d 373, 376, 378 [2013]; People v Daniel, 196 AD3d 653, 654-655 [2021]; People v Brown, 178 AD3d 1167, 1167-1168 [2019]). However, the case summary further reflects that a February 2018 substance abuse treatment admission and comprehensive evaluation resulted in a diagnostic impression of "Alcohol Use, Severe," following which defendant was referred to and participated in an alcohol and substance abuse treatment program (cf. People v Kowal, 175 AD3d 1057, 1058 [2019]). "Alcohol and drug abuse are highly associated with sex offending" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 15 [2006]; see People v Williamson, 181 AD3d at 1101). Given this identified need [*3]for treatment while incarcerated and his criminal conviction for driving while intoxicated, we find that the assessment of points for this risk factor is supported by clear and convincing evidence in the record (see People v Truelove, 191 AD3d at 1077).
Subtracting 30 points from County Court's assessment of defendant's score of 120 leaves him with a score of 90, placing him in the classification of a presumptive risk level two sex offender. As the People expressly declined to seek an upward modification at the hearing,[FN4] County Court's order must be reversed and defendant must be classified as a risk level two sex offender.
Garry, P.J., Lynch and Aarons, JJ., concur. Ordered that the order is reversed, on the law, without costs, and defendant is classified as a risk level two sex offender under the Sex Offender Registration Act.