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

198
KA 10-01224
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JEFFREY LOWERY, DEFENDANT-APPELLANT.


WYOMING COUNTY-ATTICA LEGAL AID BUREAU, INC., WARSAW (LEAH R.
NOWOTARSKI OF COUNSEL), FOR DEFENDANT-APPELLANT.

ERIC R. SCHIENER, ACTING DISTRICT ATTORNEY, GENESEO, FOR RESPONDENT.


     Appeal from an order of the Livingston County Court (Dennis S.
Cohen, J.), entered July 25, 2008. The order determined that
defendant is a level three risk pursuant to the Sex Offender
Registration Act.

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

     Memorandum: Defendant appeals from an order determining that he
is a level three risk pursuant to the Sex Offender Registration Act
([SORA] Correction Law § 168 et seq.). We reject defendant’s
contention that County Court erred in assessing 15 points under risk
factor 11, for having a history of alcohol abuse. Defendant’s
presentence investigation report (PSR) from 1986 was admitted in
evidence at the SORA hearing, and it stated that defendant
acknowledged that he had “a problem with alcohol.” The PSR also
stated that defendant had been referred to an alcohol rehabilitation
program, but that he was discharged from that program due to his
noncompliance therewith. In addition, at least one of defendant’s
prison disciplinary charges while incarcerated involved the use of
alcohol.

     Although an assessment of points under risk factor 11 is
unjustified where the defendant’s “more recent history is one of
prolonged abstinence” (Sex Offender Registration Act: Risk Assessment
Guidelines and Commentary, at 15 [2006]; see People v Wilbert, 35 AD3d
1220, 1221; People v Abdullah, 31 AD3d 515, 516), defendant’s
purported abstinence occurred while he was incarcerated. “The fact
that defendant may have abstained from the use of alcohol and drugs
while incarcerated is ‘not necessarily predictive of his behavior when
[he is] no longer under such supervision’ ” (People v Urbanski, 74
AD3d 1882, 1883, lv denied 15 NY3d 707; see People v Vangorder, 72
AD3d 1614). We therefore conclude that the court properly assessed
                                 -2-                            198
                                                          KA 10-01224

points against defendant under risk factor 11.

     We reject defendant’s further contention that the court erred in
assessing points against him under risk factor 13, based on his
“unsatisfactory” conduct while confined and supervised. The evidence
at the SORA hearing established that, while on parole for his sex
offense, defendant violated the terms and conditions of his release on
at least two occasions, and was returned to prison on both of those
occasions. The first revocation arose from a fight during which
defendant extinguished a cigarette in a man’s eye. The second
revocation arose from defendant’s perjury conviction, for lying to the
grand jury with respect to a friend’s criminal case. Defendant was
sentenced to an additional prison term on the perjury charge. In
addition, while awaiting transfer to state prison following the
perjury conviction, defendant escaped from the Livingston County jail
and assaulted a jail deputy in the process. The deputy sustained a
fractured skull in the course of the assault. Finally, during his
extended period of incarceration defendant accumulated 29 Tier II
infractions and 14 more serious Tier III infractions. Four of those
latter infractions involved the possession of a weapon. The above
evidence, none of which was disputed by defendant, justified the
court’s assessment of points under risk factor 13.

     Finally, we conclude that the court did not err in granting the
People’s request for an upward departure from a risk level two to a
risk level three, inasmuch as there existed aggravating factors “ ‘of
a kind, or to a degree, not otherwise adequately taken into account by
the [risk assessment] guidelines’ ” (People v McCollum, 41 AD3d 1187,
1188, lv denied 9 NY3d 807).




Entered:   March 23, 2012                        Frances E. Cafarell
                                                 Clerk of the Court
