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

531
KA 10-01258
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, GORSKI, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

BRIEN FREDENDALL, DEFENDANT-APPELLANT.


ADAM H. VAN BUSKIRK, AURORA, FOR DEFENDANT-APPELLANT.

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (HEATHER M. DESTEFANO OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Cayuga County Court (Mark H.
Fandrich, A.J.), entered May 10, 2010. 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: Defendant appeals from an order determining that he
is a level two risk pursuant to the Sex Offender Registration Act
(Correction Law § 168 et seq.). We reject defendant’s contention that
the assessment of 15 points against him under the risk factor for drug
or alcohol abuse is not supported by the requisite clear and
convincing evidence (see generally § 168-n [3]; Sex Offender
Registration Act: Risk Assessment Guidelines and Commentary, at 15
[2006]). Defendant’s two prior convictions of driving while ability
impaired, which arose from arrests for driving while intoxicated and
were “alcohol-related offenses,” warrant a finding that defendant has
a history of alcohol abuse, despite the fact that those convictions
“predated the underlying offense by several years” (People v Goodwin,
49 AD3d 619, 620, lv denied 10 NY3d 713, rearg denied 11 NY3d 761).
Defendant failed to preserve for our review his further contention
that he was improperly assessed 30 points under the risk factor for
age of the victims based on the fact that some of his victims, i.e.,
children depicted in the child pornography he possessed, were 10 years
old or younger (see generally People v Smith, 17 AD3d 1045, lv denied
5 NY3d 705). Finally, we reject defendant’s contention that County
Court abused its discretion in denying his request for a downward
departure, inasmuch as defendant failed to present “clear and
convincing evidence of the existence of special circumstances
warranting a downward departure” (People v Marks, 31 AD3d 1142, 1143,
                            -2-                  531
                                           KA 10-01258

lv denied 7 NY3d 715).




Entered:   April 29, 2011         Patricia L. Morgan
                                  Clerk of the Court
