Opinion
8917 Ind. 5072/09
04-04-2019
The PEOPLE of the State of New York, Respondent, v. Jose RAMOS, Defendant–Appellant.
Justine M. Luongo, The Legal Aid Society, New York (Allen Fallek of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Sheila O'Shea of counsel), for respondent.
Justine M. Luongo, The Legal Aid Society, New York (Allen Fallek of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Sheila O'Shea of counsel), for respondent.
Friedman, J.P., Gische, Kapnick, Webber, Gesmer, JJ.
Order, Supreme Court, New York County (Michael R. Sonberg, J.), entered on or about September 8, 2016, which adjudicated defendant a level three sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.
The court properly assessed 20 points under the risk factor for continuing course of sexual misconduct. The victim's trial testimony provided clear and convincing evidence that defendant had engaged in other sex acts against her on multiple occasions before the act underlying the conviction (see People v. Singh, 165 A.D.3d 444, 84 N.Y.S.3d 149 [1st Dept. 2018], lv denied 32 N.Y.3d 914, 2019 WL 192017 [2019] ). The fact that defendant was never prosecuted for those acts was relevant, but it did not preclude the court from considering reliable proof showing that the acts had in fact occurred (see People v. Santana, 162 A.D.3d 568, 75 N.Y.S.3d 418 [1st Dept. 2018] ; People v. Epstein, 89 A.D.3d 570, 571, 933 N.Y.S.2d 239 [1st Dept. 2011] ).
The court also properly assessed 15 points under the risk factor for a history of drug abuse. Although occasional social use of marijuana does not amount to substance abuse for SORA purposes, the record indicates that defendant's admitted use of marijuana was more serious. The case summary reported that "testing" revealed that defendant was "in need of intervention," had been referred to a substance abuse treatment program while incarcerated, and that the report of a drug test was "substance abuse indicated." Defendant's admission and the documents indicating that testing had diagnosed him with a substance abuse problem provides clear and convincing evidence of a history of drug abuse (see People v. Finizio, 100 A.D.3d 977, 978, 954 N.Y.S.2d 636 [2d Dept. 2012], lv denied 20 N.Y.3d 860, 2013 WL 537111 [2013] ).