                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: November 19, 2015                     519804
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                       MEMORANDUM AND ORDER

DOUGLAS R. GRIEST,
                    Appellant.
________________________________


Calendar Date:   October 15, 2015

Before:   Garry, J.P., Egan Jr., Rose and Clark, JJ.

                               __________


     Abbie Goldbas, Utica, for appellant.

      Mark D. Suben, District Attorney, Cortland (Elizabeth
McGrath of counsel), for respondent.

                               __________


Egan Jr., J.

      Appeal from an order of the County Court of Cortland County
(Campbell, J.), entered May 22, 2014, which classified defendant
as a risk level III sex offender pursuant to the Sex Offender
Registration Act.

      In 2006, defendant pleaded guilty to attempted rape in the
first degree and was sentenced to a prison term of 10 years with
five years of postrelease supervision. The underlying charges
stemmed from allegations that he repeatedly had sexual
intercourse with a 12-year-old female relative when he was 33
years old. In anticipation of defendant's release from prison,
the Board of Examiners of Sex Offenders prepared a risk
assessment instrument presumptively classifying him as a risk
level III sex offender (130 points) and recommended against a
                              -2-                519804

departure. The People adopted this recommendation, and County
Court thereafter classified defendant as a risk level III sex
offender with a designation as a sexually violent offender (see
Correction Law § 168-a [3], [7] [b]). Defendant now appeals.

      We affirm. Contrary to defendant's assertion, County Court
did not err in imposing 15 points under risk factor 11 for drug
or alcohol abuse. "An offender who has a substance abuse history
or was abusing drugs and/or alcohol at the time of the offense
may be assessed points" under factor 11 (People v Harp, 127 AD3d
1529, 1530 [2015] [internal quotation marks and citations
omitted]; see People v Gallagher, 129 AD3d 1252, 1253-1254
[2015], lv denied 26 NY3d 908 [2015]; see also People v Palmer,
20 NY3d 373, 377-378 [2013]; Sex Offender Registration Act: Risk
Assessment Guidelines and Commentary, at 15 [2006]). Here, the
assessment of points under risk factor 11 was supported by clear
and convincing evidence in the record, including information in
the case summary and presentence investigation report revealing
defendant's extensive history of alcohol abuse (see People v
Gallagher, 129 AD3d at 1254; People v Snay, 122 AD3d 1012, 1013
[2014], lv denied 24 NY3d 916 [2015]; see also Correction Law §
168-n [3]). Defendant's participation in a substance abuse
treatment program while incarcerated does not require a contrary
conclusion (see People v Tumminia, 112 AD3d 1002, 1003 [2013], lv
denied 22 NY3d 864 [2014]; People v Good, 88 AD3d 1037, 1038
[2011], lv denied 18 NY3d 802 [2011]), and "his recent history of
abstinence while incarcerated is not necessarily predictive of
his behavior when no longer under such supervision" (People v
Warren, 42 AD3d 593, 594, [2007], lv denied 9 NY3d 810 [2007]).

      We are similarly unpersuaded by defendant's challenge to
the assessment of 10 points under risk factor 13 for
unsatisfactory conduct while confined. The case summary reflects
that defendant was disciplined in 2013 for possessing pornography
in a classroom setting, which resulted in a tier III violation.
Thus, we find that defendant was properly assessed points under
this risk factor (see People v Correnti, 126 AD3d 681, 681
[2015]; People v Williams, 100 AD3d 610, 611 [2012], lv denied 20
NY3d 859 [2013]; People v Thomas, 59 AD3d 783, 785 [2009]; see
also Sex Offender Registration Act: Risk Assessment Guidelines
and Commentary, at 16 [2006]).
                        -3-                  519804

Garry, J.P., Rose and Clark, JJ., concur.



ORDERED that the order is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
