From Casetext: Smarter Legal Research

People v. Dziedzic

Supreme Court of New York, Appellate Division, Fourth Department
Aug 26, 2021
No. 2021-04885 (N.Y. App. Div. Aug. 26, 2021)

Opinion

2021-04885

08-26-2021

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. JOHN E. DZIEDZIC, DEFENDANT-APPELLANT.

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JOHN J. MORRISSEY OF COUNSEL), FOR DEFENDANT-APPELLANT. LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (ROBERT J. SHOEMAKER OF COUNSEL), FOR RESPONDENT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JOHN J. MORRISSEY OF COUNSEL), FOR DEFENDANT-APPELLANT.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (ROBERT J. SHOEMAKER OF COUNSEL), FOR RESPONDENT.

PRESENT: PERADOTTO, J.P., LINDLEY, NEMOYER, CURRAN, AND TROUTMAN, JJ.

Appeal from an order of the Genesee County Court (Charles N. Zambito, J.), dated March 12, 2020. 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: On appeal from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act ([SORA] Correction Law § 168 et seq.), defendant contends that he is entitled to a downward departure from his presumptive risk level based upon his advanced age, degenerative disc condition, and low risk of reoffending. We reject that contention. Defendant, who committed murder in the second degree while on parole for an attempted rape in the first degree conviction, "failed to demonstrate by a preponderance of the evidence that his alleged medical impairments at the time of the SORA determination would reduce the risk of his own recidivism or the danger he poses to the community" (People v Williams, 172 A.D.3d 1923, 1924 [4th Dept 2019], lv denied 33 N.Y.3d 913 [2019]; see People v Wallason, 169 A.D.3d 728, 729 [2d Dept 2019], lv denied 33 N.Y.3d 905 [2019]; People v Mota, 165 A.D.3d 988, 989 [2d Dept 2018], lv denied 32 N.Y.3d 917 [2019]). The fact that an evaluator found that he was a low risk to reoffend "does not, standing alone, qualify as an appropriate mitigating factor, and... defendant did not identify any specific, unique risk factor on the [evaluator's assessment] that would serve as a mitigating factor in this case" (People v Vega, 189 A.D.3d 1288, 1289 [2d Dept 2020], lv denied 36 N.Y.3d 913 [2021]).

Defendant's further contentions that County Court rendered an improper medical conclusion and that the court erred in considering a statement purported to be from the victim without adequate foundation are not preserved for our review (see People v Augsbury, 156 A.D.3d 1487, 1487 [4th Dept 2017], lv denied 31 N.Y.3d 903 [2018]; People v Jewell, 119 A.D.3d 1446, 1447 [4th Dept 2014], lv denied 24 N.Y.3d 905 [2014]; People v Walter, 100 A.D.3d 1442, 1443 [4th Dept 2012]).


Summaries of

People v. Dziedzic

Supreme Court of New York, Appellate Division, Fourth Department
Aug 26, 2021
No. 2021-04885 (N.Y. App. Div. Aug. 26, 2021)
Case details for

People v. Dziedzic

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. JOHN E. DZIEDZIC…

Court:Supreme Court of New York, Appellate Division, Fourth Department

Date published: Aug 26, 2021

Citations

No. 2021-04885 (N.Y. App. Div. Aug. 26, 2021)