Appeal from an order of the Criminal Court of the City of New York, Queens County (Fernando M. Camacho, J.), entered November 1, 2007. The order, after a hearing, designated defendant a level two sex offender pursuant to Correction Law article 6-C.

ORDERED that the order is affirmed without costs.

Defendant was found guilty, after a jury trial, of sexual misconduct (Penal Law § 130.20). At a hearing held pursuant to the Sex Offender Registration Act (see Correction Law § 168-n), the People submitted a presentence report indicating an admission by defendant of his use of drugs and alcohol consisting of smoking five "blunts" and drinking three glasses of wine on a daily basis in the past one to five years. The presentence report further indicated that defendant had been in drug treatment in 2004. In addition, the People presented proof that defendant had been on probation for a drug-related offense at the time he had committed the underlying offense of sexual misconduct. The People also introduced evidence of drug-related convictions from 1998 and 1999 to demonstrate defendant's history of substance abuse. Over defendant's objections, the hearing court adhered to the 85 points scored on the risk assessment instrument, which included 15 points assessed under risk factor 11 for a history of drug and alcohol abuse, and classified defendant as a level two sex offender.

On appeal, defendant contends that the hearing court improperly assessed 15 points against him under risk factor 11 and that, consequently, he should have been assessed as a level [*2]one sex offender.

The assessment of points for drug and alcohol abuse is proper "if an offender has a substance abuse history or was abusing drugs and/or alcohol at the time of the offense" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 14 [2006 ed]). The record establishes that defendant was on parole for a drug-related offense at the time he committed the underlying offense of sexual misconduct, that he had been in drug treatment during a shock incarceration program in 2004, and that he admitted that he had used drugs and alcohol in the past. Thus, the Criminal Court's assessment of 15 points under risk factor 11 was supported by clear and convincing evidence (see People v Kelley, 64 AD3d 1192 [2009]; People v Ramos, 41 AD3d 1250 [2007]). Consequently, we find that defendant was properly classified as a level two sex offender. Accordingly, the order is affirmed.

Rios, J.P., Pesce and Golia, JJ., concur.
Decision Date: October 21, 2010