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

448
KA 13-01271
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

TIMOTHY J. ENGLANT, DEFENDANT-APPELLANT.


HOGAN WILLIG, PLLC, AMHERST (GEFFREY GISMONDI OF COUNSEL), FOR
DEFENDANT-APPELLANT.

JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (KATHERINE BOGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Orleans County Court (James P. Punch,
J.), dated April 9, 2013. 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 under the Sex Offender Registration Act
(Correction Law § 168 et seq.). We reject defendant’s contention that
County Court’s assessment of 15 points for history of drug or alcohol
abuse, which was based upon the recommendation in the risk assessment
instrument prepared by the Board of Examiners of Sex Offenders, is not
supported by clear and convincing evidence. The court was entitled to
reject defendant’s assertions that his prior drug or alcohol use was
recreational, occasional, and did not constitute abuse, inasmuch as
those assertions are contradicted by his admissions to the Probation
Department, as well as his participation in alcohol and substance
abuse treatment prior to and during his incarceration (see People v
St. Jean, 101 AD3d 1684, 1684; People v Mundo, 98 AD3d 1292, 1293, lv
denied 20 NY3d 855; cf. People v Palmer, 20 NY3d 373, 378-379).




Entered:   June 13, 2014                           Frances E. Cafarell
                                                   Clerk of the Court
