Opinion
574 KA 22-00779
06-30-2023
The PEOPLE of the State of New York, Respondent, v. Ronald J. HEFFERNAN, Defendant-Appellant.
HAYDEN M. DADD, CONFLICT DEFENDER, GENESEO (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT. GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
HAYDEN M. DADD, CONFLICT DEFENDER, GENESEO (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.
GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CURRAN, BANNISTER, MONTOUR, AND OGDEN, 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 three risk and a sexually violent offender under the Sex Offender Registration Act ([SORA] Correction Law § 168 et seq. ).
Defendant contends that County Court erred in assessing points under risk factor 11. We reject that contention. Pursuant to the Sex Offender Registration Act: Risk Assessment Guidelines and Commentary (2006), "offenders are assessed 15 points under risk factor 11 if they have a history of drug or alcohol abuse or if they were abusing drugs or alcohol at the time of the sex offense" ( People v. Palmer , 20 N.Y.3d 373, 376, 960 N.Y.S.2d 719, 984 N.E.2d 917 [2013] ; see People v. Richardson , 197 A.D.3d 878, 879, 153 N.Y.S.3d 277 [4th Dept. 2021], lv denied 37 N.Y.3d 918, 2022 WL 403247 [2022] ). Here, the People established that defendant admitted to using alcohol, marihuana, crack cocaine, LSD, and hallucinogenic mushrooms, that while incarcerated he sought treatment for substance abuse, and that defendant's discharge summary from sex offender treatment while incarcerated included a recommendation that he receive additional substance abuse treatment upon his release from custody. Thus, the court properly assessed points under risk factor 11 because the People established, by clear and convincing evidence, a "pattern of drug or alcohol use in ... defendant's history" evincing a history of substance abuse ( People v. Kowal , 175 A.D.3d 1057, 1057, 105 N.Y.S.3d 688 [4th Dept. 2019] [internal quotation marks omitted]; see People v. Turner , 188 A.D.3d 1746, 1746-1747, 132 N.Y.S.3d 908 [4th Dept. 2020], lv denied 36 N.Y.3d 910, 2021 WL 1218471 [2021] ). Although the Board of Examiners of Sex Offenders (Board) did not recommend assessing defendant points under risk factor 11, their determination that defendant would "be scored conservatively" under that risk factor is not dispositive inasmuch as the "court is not bound by the Board's recommendations but, rather, must make its own determinations based on the evidence" ( People v. Cook , 29 N.Y.3d 121, 125, 53 N.Y.S.3d 238, 75 N.E.3d 655 [2017] ; see People v. Perez , 35 N.Y.3d 85, 92, 125 N.Y.S.3d 308, 149 N.E.3d 1 [2020], rearg denied 35 N.Y.3d 986, 125 N.Y.S.3d 76, 148 N.E.3d 540 [2020] ).
Contrary to defendant's further contention, we conclude that the court did not err in granting the People's request for an upward departure from defendant's presumptive classification as a level two risk to a level three risk. It is well settled that a SORA "court may make an upward departure from a presumptive risk level when, after consideration of the indicated factors[, the court determines that] there exists an aggravating ... factor of a kind, or to a degree, not otherwise adequately taken into account by the [risk assessment] guidelines" ( People v. Potts , 179 A.D.3d 1536, 1536, 117 N.Y.S.3d 410 [4th Dept. 2020], lv denied 35 N.Y.3d 908, 2020 WL 3424344 [2020] [internal quotation marks omitted]; see People v. Gillotti , 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ). We conclude that the People established the existence of such an aggravating factor by clear and convincing evidence and that the upward departure was warranted under the totality of the circumstances (see generally People v. Perez , 158 A.D.3d 1070, 1071, 70 N.Y.S.3d 313 [4th Dept. 2018], lv denied 31 N.Y.3d 905, 2018 WL 2013412 [2018] ; People v. Calderon , 126 A.D.3d 1383, 1383-1384, 5 N.Y.S.3d 657 [4th Dept. 2015], lv denied 25 N.Y.3d 909, 2015 WL 3555387 [2015] ).