LEESON, DALE F., PEOPLE v ( 2017 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
360
KA 15-00958
PRESENT: CENTRA, J.P., PERADOTTO, DEJOSEPH, CURRAN, AND SCUDDER, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
DALE F. LEESON, DEFENDANT-APPELLANT.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (MARK C. DAVISON OF
COUNSEL), FOR DEFENDANT-APPELLANT.
R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JEFFREY L. TAYLOR
OF COUNSEL), FOR RESPONDENT.
Appeal from an order of the Ontario County Court (Frederick G.
Reed, A.J.), entered May 19, 2014. 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 pursuant to the Sex Offender Registration Act
(Correction Law § 168 et seq.). Contrary to defendant’s contention,
County Court properly assessed 20 points for risk factor 4, continuing
course of sexual misconduct, and 15 points for risk factor 11, history
of drug or alcohol abuse. In addition to the case summary, the People
submitted as evidence the preplea investigation report, the victim
impact statement and the presentence report. With respect to the
court’s determination to assess 20 points for risk factor 4,
continuing course of sexual misconduct, the case summary states, inter
alia, that “between August 2003 and October, 2003” defendant engaged
in oral sexual conduct with the victim more than once, touched her
vaginal area with his hand, placed his penis near her vaginal area and
requested that the victim pose in a partially nude state. Those acts
formed the basis of defendant’s conviction of endangering the welfare
of a child, and we reject defendant’s contention that the People
failed to prove risk factor 4 by clear and convincing evidence (see
People v Scott, 71 AD3d 1417, 1417-1418, lv denied 14 NY3d 714;
People v Lewis, 50 AD3d 1567, 1568-1569, lv denied 11 NY3d 702).
With respect to risk factor 11, the preplea investigation report
contains defendant’s admission that he has “ ‘an alcohol problem’ ”
and the case summary states that defendant “has a documented history
of alcohol abuse,” that the New York State Department of Corrections
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KA 15-00958
and Community Supervision (DOCCS) testing placed him in the
“ ‘alcoholic range’ ” and that he successfully completed the DOCCS
Substance Abuse Treatment Program (see People v Glanowski, 140 AD3d
1625, 1626, lv denied 28 NY3d 902). In addition, it is undisputed
that defendant had driving while intoxicated convictions in 1987, 1989
and 1995, and we reject defendant’s contention that the court erred in
considering those convictions because they are too remote (see People
v Fredendall, 83 AD3d 1545, 1546).
Entered: March 24, 2017 Frances E. Cafarell
Clerk of the Court