People v. Clavette, 96 A.D.3d 1178 (N.Y. App. Div. 2012). · Go Syfert
People v. Clavette, 96 A.D.3d 1178 (N.Y. App. Div. 2012). Cases Citing This Book View Copy Cite
28 citation events (28 in the last 25 years) across 1 distinct court.
Strongest positive: People v. Correa (nyappdiv, 2022-02-01)
Treatment trajectory · 2013 → 2026 · click a year to view as-of
2013 2019 2026
Top citers, strongest first. 20 distinct citers. How cited ↗
discussed Cited as authority (rule) People v. Correa
N.Y. App. Div. · 2022 · confidence medium
Defendant's actions toward the son were sufficient to render the boy a victim of defendant's sexual conduct ( see People v Jones , 196 AD3d 1179 , 1180 [4th Dept 2021], lv denied 37 NY3d, 916 [2021]; People v Darrah , 153 AD3d 1528 [3d Dept 2017]; People v Clavette , 96 AD3d 1178, 1180 [3d Dept 2012], lv denied 20 NY3d 851 [2012]).
discussed Cited as authority (rule) People v. Correa
N.Y. App. Div. · 2022 · confidence medium
Defendant's actions toward the son were sufficient to render the boy a victim of defendant's sexual conduct ( see People v Jones , 196 AD3d 1179 , 1180 [4th Dept 2021], lv denied 37 NY3d, 916 [2021]; People v Darrah , 153 AD3d 1528 [3d Dept 2017]; People v Clavette , 96 AD3d 1178, 1180 [3d Dept 2012], lv denied 20 NY3d 851 [2012]).
discussed Cited as authority (rule) People v. Darrah
N.Y. App. Div. · 2017 · confidence medium
“County Court was not limited to the crime to which defendant pleaded guilty but could, instead, consider reliable hearsay evidence in the record, including evidence that defendant engaged in criminal conduct against one child in the presence of a second child” (People v Clavette, 96 AD3d 1178, 1179-1180 [2012] [internal quotation marks and citations omitted], lv denied 20 NY3d 851 [2012]; see People v Whyte, 89 AD3d 1407, 1408 [2011]; People v Milton, 55 AD3d 1073, 1073 [2008]).
discussed Cited as authority (rule) People v. Current
N.Y. App. Div. · 2017 · confidence medium
However, this Court has limited its application of the latter principle to the assessment of points in the RAI under “current offenses” and has not applied it to the offender’s “criminal history” (see People v Smith, 128 AD3d 1189, 1189-1190 [2015]; People v Tubbs, 124 AD3d 1094, 1094-1095 [2015]; People v Snay, 122 AD3d 1012 , 1013 [2014], lv denied 24 NY3d 916 [2015]; People v Clavette, 96 AD3d 1178, 1179-1180 [2012], lv denied 20 NY3d 851 [2012]; but see People v Slotman, 112 AD3d 1332, 1333 [2013]).
discussed Cited as authority (rule) People v. Jamison
N.Y. App. Div. · 2016 · confidence medium
Defendant’s challenge to that conviction is not properly before us on this appeal from the SORA determination (see generally People v Buniek, 121 AD3d 659, 659 [2014], lv denied 24 NY3d 914 [2015]; People v Clavette, 96 AD3d 1178, 1179 [2012], lv denied 20 NY3d 851 [2012]; People v Ayala, 72 AD3d 1577, 1578 [2010], lv denied 15 NY3d 816 [2010]).
discussed Cited as authority (rule) People v. Jamison
N.Y. App. Div. · 2016 · confidence medium
Defendant’s challenge to that conviction is not properly before us on this appeal from the SORA determination (see generally People v Buniek, 121 AD3d 659, 659 [2014], lv denied 24 NY3d 914 [2015]; People v Clavette, 96 AD3d 1178, 1179 [2012], lv denied 20 NY3d 851 [2012]; People v Ayala, 72 AD3d 1577, 1578 [2010], lv denied 15 NY3d 816 [2010]).
discussed Cited as authority (rule) People v. Smith
N.Y. App. Div. · 2015 · confidence medium
Given this clear and convincing evidence that the third child was the victim of defendant’s sexual misconduct, County Court properly assessed defendant with 30 points under risk factor 3 for three or more victims (see People v Clavette, 96 AD3d 1178, 1179-1180 [2012], lv denied 20 NY3d 851 [2012]; People v Ramirez, 53 AD3d 990, 990 [2008], lv denied 11 NY3d 710 [2008]; compare People v Izzo, 120 AD3d 860, 863-864 [2014, Garry, J., dissenting]).
discussed Cited as authority (rule) People v. Harp
N.Y. App. Div. · 2015 · confidence medium
“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” (People v Clavette, 96 AD3d 1178, 1179 [2012], lv denied 20 NY3d 851 [2012] [citation and emphasis omitted]; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 15 [2006]; People v Roberts, 108 AD3d 947, 948 [2013], lv denied 22 NY3d 852 [2013]).
discussed Cited as authority (rule) PeoplevSnay
N.Y. App. Div. · 2014 · confidence medium
Contrary to defendant's assertion, "County Court was not limited to the crime to which [he] pleaded, but could, instead, consider reliable hearsay evidence in the record" (People v Clavette, 96 AD3d 1178, 1180 [2012], lv denied 20 NY3d 851 [2012] [internal quotation marks and citations omitted]; see People v Ackley, 95 AD3d 1463, 1463-1464 [2012]), including the case summary, presentence investigation report and victim statements (see People v Mingo, 12 NY3d 563, 571-574 [2009]; People v Luebbert, 73 AD3d 1399, 1399-1400 [2010]).
discussed Cited as authority (rule) People v. Snay
N.Y. App. Div. · 2014 · confidence medium
Contrary to defendant’s assertion, “County Court was not limited to the crime to which [he] pleaded guilty but could, instead, consider reliable hearsay evidence in the record” (People v Clavette, 96 AD3d 1178, 1180 [2012], lv denied 20 NY3d 851 [2012] [internal quotation marks and citations omitted]; see People v Ackley, 95 AD3d 1463, 1463-1464 [2012]), including the case summary, presentence investigation report and victim statements (see People v Mingo, 12 NY3d 563, 571-574 [2009]; People v Luebbert, 73 AD3d 1399, 1399-1400 [2010]).
discussed Cited as authority (rule) People v. Snay
N.Y. App. Div. · 2014 · confidence medium
Contrary to defendant’s assertion, “County Court was not limited to the crime to which [he] pleaded guilty but could, instead, consider reliable hearsay evidence in the record” (People v Clavette, 96 AD3d 1178, 1180 [2012], lv denied 20 NY3d 851 [2012] [internal quotation marks and citations omitted]; see People v Ackley, 95 AD3d 1463, 1463-1464 [2012]), including the case summary, presentence investigation report and victim statements (see People v Mingo, 12 NY3d 563, 571-574 [2009]; People v Luebbert, 73 AD3d 1399, 1399-1400 [2010]).
discussed Cited as authority (rule) PeoplevIzzo
N.Y. App. Div. · 2014 · confidence medium
Our precedent establishes a significantly higher standard of misconduct (compare People v Clavette, 96 AD3d 1178, 1179-1180 [2012], lv denied 20 NY3d 851 [2012]; People v Ramirez, 53 AD3d 990, 990 [2008], lv denied 11 NY3d 710 [2008]).
discussed Cited as authority (rule) People v. Izzo
N.Y. App. Div. · 2014 · confidence medium
Our precedent establishes a significantly higher standard of misconduct (compare People v Clavette, 96 AD3d 1178, 1179-1180 [2012], lv denied 20 NY3d 851 [2012]; People v Ramirez, 53 AD3d 990, 990 [2008], lv denied 11 NY3d 710 [2008]).
discussed Cited as authority (rule) People v. Izzo
N.Y. App. Div. · 2014 · confidence medium
Our precedent establishes a significantly higher standard of misconduct (compare People v Clavette, 96 AD3d 1178, 1179-1180 [2012], lv denied 20 NY3d 851 [2012]; People v Ramirez, 53 AD3d 990, 990 [2008], lv denied 11 NY3d 710 [2008]).
discussed Cited as authority (rule) People v. Roberts
N.Y. App. Div. · 2013 · confidence medium
“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” in this category (People v Clavette, 96 AD3d 1178, 1179 [2012], lv denied 20 NY3d 851 [2012] [additional emphasis added and citations omitted]; see People v Lerch, 66 AD3d 1088, 1089 [2009], lv denied 13 NY3d 715 [2010]).
discussed Cited as authority (rule) People v. Roberts
N.Y. App. Div. · 2013 · confidence medium
“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” in this category (People v Clavette, 96 AD3d 1178, 1179 [2012], lv denied 20 NY3d 851 [2012] [additional emphasis added and citations omitted]; see People v Lerch, 66 AD3d 1088, 1089 [2009], lv denied 13 NY3d 715 [2010]).
discussed Cited as authority (rule) People v. Carter (2×) also: Cited "see"
N.Y. App. Div. · 2013 · confidence medium
Initially, defendant’s claims challenging the propriety of his 1991 judgment of conviction are not properly before us and will not be addressed (see People v Clavette, 96 AD3d 1178, 1179 [2012], lv denied 20 NY3d 851 [2012]; People v Wright, 53 AD3d 963, 963 [2008], lv denied 11 NY3d 710 [2008]; see also People v Ayala, 72 AD3d 1577, 1578 [2010], lv denied 15 NY3d 816 [2010]). 1 Defendant also challenges County Court’s designation of him as a risk level III sex offender and a predicate sex offender. 2 We note that County Court failed to issue a written order setting forth its findings of f…
discussed Cited as authority (rule) People v. Carter (2×) also: Cited "see"
N.Y. App. Div. · 2013 · confidence medium
Initially, defendant’s claims challenging the propriety of his 1991 judgment of conviction are not properly before us and will not be addressed (see People v Clavette, 96 AD3d 1178, 1179 [2012], lv denied 20 NY3d 851 [2012]; People v Wright, 53 AD3d 963, 963 [2008], lv denied 11 NY3d 710 [2008]; see also People v Ayala, 72 AD3d 1577, 1578 [2010], lv denied 15 NY3d 816 [2010]). 1 Defendant also challenges County Court’s designation of him as a risk level III sex offender and a predicate sex offender. 2 We note that County Court failed to issue a written order setting forth its findings of f…
discussed Cited "see" People v. Belile
N.Y. App. Div. · 2013 · signal: see · confidence high
Here, we reject defendant’s contention that he was improperly assessed 15 points for drug use, as points may be assessed when 6 6 6 an offender has a substance abuse history or was abusing drugs and or alcohol at the time of the offense’ ” (People v Rhodehouse, 77 AD3d 1032, 1033 [2010], lv denied 16 NY3d 701 [2011] , quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 15 [2006]; see People v Clavette, 96 AD3d 1178, 1179 [2012], lv denied 20 NY3d 851 [2012]).
discussed Cited "see" People v. Belile
N.Y. App. Div. · 2013 · signal: see · confidence high
Here, we reject defendant’s contention that he was improperly assessed 15 points for drug use, as points may be assessed when 6 6 6 an offender has a substance abuse history or was abusing drugs and or alcohol at the time of the offense’ ” (People v Rhodehouse, 77 AD3d 1032, 1033 [2010], lv denied 16 NY3d 701 [2011] , quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 15 [2006]; see People v Clavette, 96 AD3d 1178, 1179 [2012], lv denied 20 NY3d 851 [2012]).
Retrieving the full opinion text from the archive…
The People of the State of New York
v.
John M. Clavette
Appellate Division of the Supreme Court of the State of New York.
Jun 14, 2012.
96 A.D.3d 1178
Peters.
Cited by 22 opinions  |  Published
Peters, P.J.

Appeal from an order of the County Court of Saratoga County (Scarano, J.), entered March 3, 2010, which[*1179] classified defendant as a risk level three sex offender and a sexually violent offender pursuant to the Sex Offender Registration Act.

In March 2003, defendant was charged with three counts of sodomy in the first degree, four counts of sexual abuse in the second degree and two counts of endangering the welfare of a child based upon allegations that he engaged in numerous oral and anal sexual acts with a 12-year-old male relative, at times in the presence of a 13-year-old female relative. He thereafter pleaded guilty to one count of attempted sodomy in the first degree in full satisfaction of the charges and was sentenced by County Court to a term of 7x/2 years in prison, plus a period of postrelease supervision. The Board of Examiners of Sex Offenders prepared a risk assessment instrument pursuant to the Sex Offender Registration Act (see Correction Law art 6-C) prior to defendant’s release recommending that he be classified as a risk level three sex offender and a sexually violent offender. After a hearing, County Court adopted the Board’s recommendation. Defendant appeals, and we affirm.

Initially, defendant’s arguments pertaining to his judgment of conviction are not properly before this Court and will not be addressed (see CPL 1.20 [15]; 450.10; see e.g. People v Smith, 15 NY3d 669, 673 [2010]; People v Ayala, 72 AD3d 1577, 1578 [2010], lv denied 15 NY3d 816 [2010]; People v Wright, 53 AD3d 963, 963 [2008], lv denied 11 NY3d 710 [2008]). Turning to the merits, we reject defendant’s assertion that he was improperly assessed points for his alcohol abuse because his drinking habits are unrelated to his offense. 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 (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 15 [2006]; People v Rhodehouse, 77 AD3d 1032, 1033 [2010], lv denied 16 NY3d 701 [2011]; People v Brownell, 66 AD3d 1060, 1061 [2009]). Defendant admitted to being an alcoholic, that he had in the past been fired from employment for showing up intoxicated, that his alcohol abuse was a contributing factor in three of his prior arrests and that, although he completed an alcohol and substance abuse treatment program in 2004, he “has always resumed drinking.” We find that this evidence is sufficient to establish defendant’s substance abuse history, thus justifying the assessment of 15 points under this category (see People v Rhodehouse, 77 AD3d at 1033; compare People v Titmas, 46 AD3d 1308, 1309 [2007]).

Nor are we persuaded that County Court erred in its imposition of 20 points for two victims. While defendant pleaded guilty[*1180] to a single count of attempted sodomy in the first degree, “County Court was not limited to the crime to which defendant pleaded guilty but could, instead, consider reliable hearsay evidence in the record” (People v Thomas, 59 AD3d 783, 784 [2009]), including evidence that defendant engaged in criminal conduct against one child in the presence of a second child (see People v Milton, 55 AD3d 1073, 1073 [2008]; People v Ramirez, 53 AD3d 990, 990 [2008], lv denied 11 NY3d 710 [2008]). The evidence revealed that defendant engaged in oral and anal sexual conduct with this young male relative in the presence of the child’s female cousin and that, on at least one occasion, defendant encouraged this cousin to “stroke” the boy’s penis. Although defendant now denies encouraging the cousin to take part in his criminal sexual conduct, at the time of his conviction he acknowledged having offered her money and cigarettes to “keep [her] quiet.” Under these circumstances, we find that the People proved by clear and convincing evidence that defendant victimized two children (see People v Milton, 55 AD3d at 1073).

Lastly, we reject defendant’s argument that County Court’s error in misstating his crime of conviction in its order warrants reversal of his sex offender classification. The fact that defendant has been convicted of any specific crime, although relevant to whether his registration is required under the Sex Offender Registration Act and whether he must register as a sexually violent offender (see Correction Law § 168-a [2], [3]), does not and did not form the sole basis of defendant’s risk level classification. Instead, it is the conduct underlying defendant’s charged crimes and ultimate conviction that is — and was — properly considered (see e.g. People v Carpenter, 63 AD3d 1320, 1322 [2009], lv denied 13 NY3d 704 [2009]). County Court relied on the risk assessment instrument, the case summary and the presentence investigation report, all of which correctly identify defendant’s crime of conviction and contain evidence supporting his classification as a risk level three sex offender. As the court’s error did not form the basis of defendant’s risk level classification, which is otherwise supported by clear and convincing evidence, we find such error to be harmless (see e.g. People v Joe, 74 AD 3d 404, 404 [2010], lv denied 15 NY3d 707 [2010]).

Defendant’s remaining contentions, to the extent that they are properly before us, have been considered and found to be without merit.

Lahtinen, Spain, Kavanagh and McCarthy, JJ., concur. Ordered that the order is affirmed, without costs.