Opinion
518942.
05-05-2016
The PEOPLE of the State of New York, Respondent, v. Jamel M. RIDDICK, Appellant.
Benjamin K. Bergman, Binghamton, for appellant. Gwen P. Wilkinson, District Attorney, Ithaca (Wendy L. Franklin of counsel), for respondent.
Benjamin K. Bergman, Binghamton, for appellant.
Gwen P. Wilkinson, District Attorney, Ithaca (Wendy L. Franklin of counsel), for respondent.
Before: PETERS, P.J., LAHTINEN, ROSE, LYNCH and AARONS, JJ.
Opinion
AARONS, J. Appeal from an order of the County Court of Tompkins County (Cassidy, J.), entered March 21, 2014, which classified defendant as a risk level II sex offender pursuant to the Sex Offender Registration Act.
Defendant pleaded guilty to rape in the third degree based upon his admission to having sexual intercourse with a 15–year–old girl when he was 28 years old. He was sentenced to a 2 ½–year prison term, as a second felony offender, with five years of postrelease supervision. In anticipation of his release, the Board of Examiners of Sex Offenders prepared a risk assessment instrument that presumptively classified defendant as a risk level II sex offender (105 points) and recommended against a departure. The People adopted this recommendation. Following a Sex Offender Registration Act (see Correction Law art 6–C [hereinafter SORA] ) hearing, County Court denied defendant's request for a downward departure and classified him as a risk level II sex offender, and defendant now appeals.
We affirm. Defendant challenges the assignment of points for continuing course of sexual misconduct under risk factor 4 and for history of drug abuse under risk factor 11. As relevant here, 20 points may be assigned under factor 4 when an offender “engages in ... two or more acts of sexual contact, at least one of which is an act of sexual intercourse ... which acts are separated in time by at least 24 hours” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 10 [2006] ). Defendant concedes that the evidence established that he had sexual intercourse with the victim on two occasions, but argues that it failed to establish that the crimes were separated by the requisite 24–hour period of time. However, although the Board assessed 20 points under this risk factor in the risk assessment instrument, which the People adopted, defendant did not raise this specific contention in his written papers requesting a downward departure in his presumptive risk level or at the SORA hearing, and County Court did not address it. Consequently, the issue is unpreserved (see People v. Windham, 10 N.Y.3d 801, 802, 856 N.Y.S.2d 557, 886 N.E.2d 179 [2008] ; see also People v. Gillotti, 23 N.Y.3d 841, 861 n. 5, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ; People v. Snyder, 133 A.D.3d 1052, 1052, 19 N.Y.S.3d 631 [2015], lv. denied 27 N.Y.3d 902, 2016 WL 1203420 [2016] ; People v. Benson, 132 A.D.3d 1030, 1032, 17 N.Y.S.3d 517 [2015], lv. denied 26 N.Y.3d 913, 2015 WL 7432803 [2015] ).
With regard to the assignment of 15 points for history of drug abuse, the evidence in the case summary and presentence investigation report reflect defendant's admission that he used marihuana on a weekly basis when not incarcerated (see Correction Law § 168–n [3 ]; 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] ). Defendant maintains that this was an insufficient use to constitute drug abuse within the meaning of the SORA guidelines (see generally People v. Palmer, 20 N.Y.3d 373, 378–379, 960 N.Y.S.2d 719, 984 N.E.2d 917 [2013] ). Even if we were to find in defendant's favor on this issue, he would remain a presumptive risk level II sex offender. As such, we decline to disturb the determination.
ORDERED that the order is affirmed, without costs. PETERS, P.J., LAHTINEN, ROSE and LYNCH, JJ., concur.