

People v Frey (2015 NY Slip Op 00818)





People v Frey


2015 NY Slip Op 00818


Decided on February 3, 2015


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on February 3, 2015

Friedman, J.P., Andrias, Saxe, Richter, Gische, JJ.


14121 2914/08

[*1] The People of the State of New York, Respondent,
vJames Frey, Defendant-Appellant.


Robert S. Dean, Center for Appellate Litigation, New York (Julia Busetti of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Manu K. Balachandran of counsel), for respondent.

Order, Supreme Court, New York County (Michael J. Obus, J.), entered on or about June 3, 2013, which adjudicated defendant a level three sexually violent predicate sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.
The court properly assessed 10 points under the risk factor for defendant's age of 20 years or less when he committed his first act of sexual misconduct, notwithstanding that this was based on a youthful offender adjudication (see People v Wilkins, 77 AD3d 588 [1st Dept 2010], lv denied 16 NY3d 703 [2011]); see also People v Torres, 103 AD3d 868 [2d Dept], lv denied 21 NY3d 856 [2013]). Contrary to defendant's assertions, CPL 720.35 does not prohibit the use of youthful offender adjudications by courts.
The court also properly assessed 15 points under the risk factor for alcohol abuse, based on clear and convincing evidence including defendant's past conviction and pending charges of driving while impaired, and his conceded history of ethanol abuse. The only evidence to suggest that he did not have any history of alcohol abuse were documents based on his self-reported answers, which the court properly deemed unreliable in light of the other evidence in the record.
In any event, resolution of defendant's challenges to point assessments is not necessary to the disposition of this appeal. Even deducting the challenged 25 points, defendant would remain a presumptive level three offender, and even with the reduced point score, there is no basis for a downward departure (see People v Gillotti, 23 NY3d 841 [2014]), particularly in light of the seriousness of the underlying sex crime, and defendant's extensive criminal history, which includes the commission of other sex offenses against both children and adults. We note that [*2]defendant committed the instant offense after twice being adjudicated a level three sex offender, and that he was sentenced as a second child sexual assault felony offender (see Penal Law § 70.07).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 3, 2015
CLERK


