Opinion
07-26-2024
The PEOPLE of the State of New York, Respondent, v. Darryl BROWN, Defendant-Appellant.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (TIMOTHY S. DAVIS OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
Appeal from an order of the Monroe County Court (Meredith A. Vacca, J.), entered February 1, 2022. The order determined that defendant is a level two risk pursuant to the Sex Offender Registration Act.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (TIMOTHY S. DAVIS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
PRESENT: LINDLEY, J.P., CURRAN, OGDEN, GREENWOOD, AND KEANE, JJ.
MEMORANDUM AND ORDER
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 two risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.). Contrary to defendant’s contention, County 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 th[at] risk factor" (People v. Schumacher, 224 A.D.3d 1326, 1327, 205 N.Y.S.3d 603 [4th Dept. 2024] [internal quotation marks omitted]). Those statements establish that defendant has a history of marihuana and alcohol abuse. "Although defendant appears to have abstained from drug and alcohol use while incarcerated, a ‘recent history of abstinence while incarcerated is not necessarily predictive of his behavior when no longer under such supervision’ " (People v. Turner, 188 A.D.3d 1746, 1747, 132 N.Y.S.2d 908 [4th Dept. 2020], lv denied 36 N.Y.3d 910, 2021 WL 1218471 [2021]; see People v. Cox, 181 A.D.3d 1184, 1185, 122 N.Y.S.3d 205 [4th Dept. 2020], lv denied 35 N.Y.3d 909, 2020 WL 3467489 [2020]; People v. Slishevsky, 174 A.D.3d 1399, 1400, 103 N.Y.S.3d 739 [4th Dept. 2019], lv denied 34 N.Y.3d 908, 2020 WL 205912 [2020]; see generally People v. Palmer, 20 N.Y.3d 373, 377-378, 960 N.Y.S.2d 719, 984 N.E.2d 917 [2013]).