Opinion
07-01-2016
The PEOPLE of the State of New York, Respondent, v. Kenneth F. FIGUEROA, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (James Eckert of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
Appeal from an order of the Supreme Court, Monroe County (Daniel J. Doyle, J.), entered August 29, 2014. The order determined that defendant is a level two risk pursuant to the Sex Offender Registration Act. Timothy P. Donaher, Public Defender, Rochester (James Eckert of Counsel), for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
Opinion
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. The assessment is supported by reliable hearsay contained in the case summary (see People v. Ramos, 41 A.D.3d 1250, 1250, 839 N.Y.S.2d 383, lv. denied 9 N.Y.3d 809, 844 N.Y.S.2d 785, 876 N.E.2d 514 ; see generally People v. Mingo, 12 N.Y.3d 563, 573, 883 N.Y.S.2d 154, 910 N.E.2d 983 ), which provides that defendant admitted to the personnel of the Department of Corrections and Community Supervision “a substance abuse history that included alcohol and marijuana for which he has never received treatment.” “Furthermore, the record establishes that defendant was [referred to] drug and alcohol treatment while incarcerated, thus further supporting the court's assessment of points for a history of drug or alcohol abuse” (People v. Mundo, 98 A.D.3d 1292, 1293, 951 N.Y.S.2d 782, lv. denied 20 N.Y.3d 855, 2013 WL 69135 ; see People v. Englant, 118 A.D.3d 1289, 1289, 987 N.Y.S.2d 534 ). We note that defendant “presented no evidence to the contrary” but merely pointed to an inconsistent statement in the presentence report wherein he denied any alcohol or substance abuse (People v. Kyle, 64 A.D.3d 1177, 1178, 881 N.Y.S.2d 759, lv. denied 13 N.Y.3d 709, 2009 WL 3379124 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
SMITH, J.P., CENTRA, CARNI, CURRAN, and SCUDDER, JJ., concur.