Opinion
1413 KA 14-01681.
12-31-2015
The PEOPLE of the State of New York, Respondent, v. David JACKSON, Defendant–Appellant.
Michael J. Stachowski, P.C., Buffalo (Michael J. Stachowski of Counsel), for Defendant–Appellant. Frank A. Sedita, Iii, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
Michael J. Stachowski, P.C., Buffalo (Michael J. Stachowski of Counsel), for Defendant–Appellant.
Frank A. Sedita, Iii, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
Opinion
MEMORANDUM:
Defendant appeals from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act ( [SORA] 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. That assessment is supported by the reliable hearsay contained in the presentence report and the case summary, and defendant admitted at the SORA hearing that he had a history of drug abuse (see People v. Okafor, 117 A.D.3d 1579, 1580, 984 N.Y.S.2d 920, lv. denied 24 N.Y.3d 902, 2014 WL 4357469; 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). Defendant's purported abstinence while incarcerated “is not necessarily predictive of his behavior when [he is] no longer under such supervision” (People v. Lowery, 93 A.D.3d 1269, 1270, 940 N.Y.S.2d 745, lv. denied 19 N.Y.3d 807, 2012 WL 2401529 [internal quotation marks omitted]; see People v. Green, 104 A.D.3d 1222, 1223, 960 N.Y.S.2d 582, lv. denied 21 N.Y.3d 860, 2013 WL 3198003; Ramos, 41 A.D.3d at 1250, 839 N.Y.S.2d 383).
We reject defendant's further contention that the People failed to present clear and convincing evidence to support the assessment of 20 points under risk factor 7, i.e., that the victim was a stranger. The People “presented evidence establishing that the victim ... did not know [defendant's] legal name, and knew no other personal information about him” (People v. Lewis, 45 A.D.3d 1381, 1381, 845 N.Y.S.2d 585, lv denied 10 N.Y.3d 703, 854 N.Y.S.2d 103, 883 N.E.2d 1010). The victim gave a general description to the police of the man who raped her, and defendant was not identified as a suspect until two years later, when a search of the New York State DNA Index System resulted in a match between a DNA specimen taken from defendant and a semen specimen found on slides taken from the victim as part of her rape kit. Defendant's assertion during his presentence investigation that he had met the victim at a “drug house,” without more, does not establish that they were acquaintances (see generally People v. Odum, 101 A.D.3d 1693, 1693, 956 N.Y.S.2d 772, lv. dismissed 20 N.Y.3d 1094, 965 N.Y.S.2d 79, 987 N.E.2d 641).
Finally, contrary to defendant's contention, the court properly assessed 15 points under risk factor 12 for defendant's failure to accept responsibility and expulsion from treatment. Defendant reported during his presentence investigation that the sexual relations with the victim were consensual, thus establishing his failure to accept responsibility (see People v. Urbanski, 74 A.D.3d 1882, 1883, 903 N.Y.S.2d 648, lv. denied 15 N.Y.3d 707, 2010 WL 3583295; People v. Baker, 57 A.D.3d 1472, 1473, 871 N.Y.S.2d 537, lv. denied 12 N.Y.3d 706, 879 N.Y.S.2d 53, 906 N.E.2d 1087). In addition, the court “properly relied on the case summary ... in finding that the defendant refused or was expelled from [ ] sex offender treatment” (People v. Murphy, 68 A.D.3d 832, 833, 890 N.Y.S.2d 605, lv. dismissed 14 N.Y.3d 812, 899 N.Y.S.2d 752, 926 N.E.2d 256; see People v. Guzman, 96 A.D.3d 1441, 1442, 945 N.Y.S.2d 904, lv. denied 19 N.Y.3d 812, 2012 WL 4017731). The case summary stated that defendant was removed from sex offender treatment on two occasions for disciplinary reasons, and has since refused to participate in the program.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.