        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

437
KA 15-00046
PRESENT: WHALEN, P.J., CARNI, NEMOYER, TROUTMAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ROBERT L. GLANOWSKI, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (NICHOLAS
T. TEXIDO OF COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (John L.
Michalski, A.J.), entered December 9, 2014. The order determined that
defendant is a level two risk pursuant to the Sex Offender
Registration Act.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: On appeal from an order determining that defendant
is a level two risk pursuant to the Sex Offender Registration Act
(Correction Law § 168 et seq.), defendant contends that Supreme Court
erred in assessing 20 points under the risk factor for a continuing
course of sexual misconduct. “Although that factor was not an element
of the crime[] of which [defendant] was convicted, the court was not
limited to considering only such crime[]” (People v Scott, 71 AD3d
1417, 1417-1418, lv denied 14 NY3d 714). The record establishes that
the incident upon which defendant’s conviction of rape in the first
degree (Penal Law § 130.35 [4]) is based was not the only sexual
encounter between defendant and the victim. Defendant’s remaining
contention with respect to that risk factor is not preserved for our
review (see People v Walter, 100 AD3d 1442, 1443) and, in any event,
we conclude that it is without merit.

     Contrary to defendant’s further contention, the court did not err
in assessing 15 points against defendant under the risk factor for
history of drug or alcohol abuse. The instant assertions that
defendant did not abuse drugs or alcohol were “contradicted by
[defendant’s] admissions to the Probation Department, as well as
[defendant’s] participation in alcohol and substance abuse treatment”
                                 -2-                           437
                                                         KA 15-00046

while incarcerated (People v Englant, 118 AD3d 1289, 1289).




Entered:   June 10, 2016                       Frances E. Cafarell
                                               Clerk of the Court
