Opinion
1430 KA 16–01599
12-22-2017
The PEOPLE of the State of New York, Respondent, v. Billy Joe ARNOLD, Defendant–Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER ( KIMBERLY F. DUGUAY OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER ( KIMBERLY F. DUGUAY OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, DEJOSEPH, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Memorandum: Defendant appeals from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act ( Correction Law § 168 et seq. ). Contrary to defendant's contention, Supreme Court properly assessed 15 points under risk factor 11 for a history of drug or alcohol abuse inasmuch as " ‘[t]he statements in the case summary and presentence report with respect to defendant's substance abuse constitute reliable hearsay supporting the court's assessment of points under [that] risk factor’ " ( People v. Kunz, 150 A.D.3d 1696, 1696, 53 N.Y.S.3d 788 [4th Dept. 2017], lv denied 29 N.Y.3d 916, 64 N.Y.S.3d 666, 86 N.E.3d 558 [2017] ; see People v. Jackson, 134 A.D.3d 1580, 1580, 22 N.Y.S.3d 749 [4th Dept. 2015] ). Contrary to defendant's further contention, " ‘[a]n offender need not be abusing alcohol or drugs at the time of the instant offense to receive points' for that risk factor" ( Kunz, 150 A.D.3d at 1697, 53 N.Y.S.3d 788 ).
In addition, we conclude that the court providently exercised its discretion in denying defendant's request for a downward departure from his presumptive risk level (see People v. Smith, 122 A.D.3d 1325, 1326, 995 N.Y.S.2d 890 [4th Dept. 2014] ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.