Opinion
198 KA 21-01076
03-18-2022
The PEOPLE of the State of New York, Respondent, v. Michael J. JACKSON, Defendant-Appellant.
FRANCIS M. CIARDI, ROCHESTER, FOR DEFENDANT-APPELLANT.
FRANCIS M. CIARDI, ROCHESTER, FOR DEFENDANT-APPELLANT.
PRESENT: PERADOTTO, J.P., LINDLEY, CURRAN, WINSLOW, AND BANNISTER, 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 ([SORA] Correction Law § 168 et seq. ). We affirm.
Contrary to defendant's contention, County Court properly assessed 15 points under risk factor 11 for a history of drug or alcohol abuse. The SORA guidelines justify the addition of 15 points under risk factor 11 "if an offender has a substance abuse history or was abusing drugs ... or alcohol at the time of the offense" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 15 [2006] [Guidelines]; see People v. Palmer , 20 N.Y.3d 373, 376, 960 N.Y.S.2d 719, 984 N.E.2d 917 [2013] ; 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] ). "A history of substance abuse within the meaning of risk factor 11 exists only when there is a pattern of drug or alcohol use in [the] defendant's history" ( People v. Kowal , 175 A.D.3d 1057, 1057, 105 N.Y.S.3d 688 [4th Dept. 2019] [internal quotation marks omitted]). Here, the People established by clear and convincing evidence that defendant was abusing alcohol at the time he committed the underlying offense, and that he had failed to complete a course for alcohol abuse treatment after developing an admittedly heavy drinking problem about a year before the underlying offense. Those facts warranted the assessment of points under risk factor 11 (see Palmer , 20 N.Y.3d at 377-378, 960 N.Y.S.2d 719, 984 N.E.2d 917 ; People v. Stewart , 199 A.D.3d 1479, 1480, 154 N.Y.S.3d 896 [4th Dept. 2021] ; Turner , 188 A.D.3d at 1747, 132 N.Y.S.3d 908 ).
We reject defendant's further contention that the court erred in assessing 10 points against him under risk factor 12 for failure to accept responsibility (see Guidelines at 15-16). Although defendant pleaded guilty to the crime underlying the SORA determination, and made some statements to the probation officer preparing the presentence report wherein he admitted his guilt and accepted responsibility, there was evidence that those statements to the probation officer were rehearsed and not genuine, and defendant made other conflicting statements suggesting that he blamed the victim for the underlying offense (see People v. Vasquez , 149 A.D.3d 1584, 1585, 52 N.Y.S.3d 806 [4th Dept. 2017], lv denied 29 N.Y.3d 916, 2017 WL 3908423 [2017] ; People v. Havens , 144 A.D.3d 1632, 1632-1633, 42 N.Y.S.3d 708 [4th Dept. 2016], lv denied 29 N.Y.3d 901, 2017 WL 1093982 [2017] ; People v. Noriega , 26 A.D.3d 767, 767, 808 N.Y.S.2d 529 [4th Dept. 2006], lv denied 6 N.Y.3d 713, 816 N.Y.S.2d 748, 849 N.E.2d 971 [2006] ). Thus, "[t]he court properly concluded that defendant's statement[s] did not reflect a genuine acceptance of responsibility as required by the risk assessment guidelines developed by the Board [of Examiners of Sex Offenders]" ( Vasquez , 149 A.D.3d at 1585, 52 N.Y.S.3d 806 [internal quotation marks omitted]; see People v. Askins , 148 A.D.3d 1598, 1598-1599, 50 N.Y.S.3d 704 [4th Dept. 2017], lv denied 29 N.Y.3d 912, 2017 WL 2467479 [2017] ; People v. Jamison , 137 A.D.3d 1742, 1743, 27 N.Y.S.3d 417 [4th Dept. 2016], lv denied 27 N.Y.3d 910, 2016 WL 3524427 [2016] ). To the extent defendant argues that he was not afforded due process because the court did not engage in adequate fact-finding with respect to its assessment of points under risk factor 12, we conclude that his contention is unpreserved for our review because he did not assert at the hearing that his due process rights were being violated (see People v. Mejia , 189 A.D.3d 900, 901, 133 N.Y.S.3d 477 [2d Dept. 2020], lv denied 37 N.Y.3d 910, 2021 WL 4188594 [2021] ; Turner , 188 A.D.3d at 1746, 132 N.Y.S.3d 908 ; People v. Akinpelu , 126 A.D.3d 1451, 1452, 6 N.Y.S.3d 347 [4th Dept. 2015], lv denied 25 N.Y.3d 912, 2015 WL 3951953 [2015] ).
Finally, defendant's contention that a downward departure from his presumptive risk level was warranted is without merit inasmuch as he failed to prove at the SORA hearing, by a preponderance of the evidence, a "mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines" (Guidelines at 4; see People v. Mann , 177 A.D.3d 1319, 1320, 110 N.Y.S.3d 357 [4th Dept. 2019], lv denied 35 N.Y.3d 902, 2020 WL 2071370 [2020] ). Even assuming, arguendo, that defendant surmounted the first two steps of the analysis (see generally People v. Gillotti , 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ), upon weighing the mitigating circumstance against the aggravating circumstances, we conclude that the court did not abuse its discretion in denying the request for a downward departure because the totality of the circumstances demonstrates that "defendant's presumptive risk level does not represent an over-assessment of his dangerousness and risk of sexual recidivism" ( People v. Burgess , 191 A.D.3d 1256, 1257, 137 N.Y.S.3d 781 [4th Dept. 2021] ; see People v. Butler , 129 A.D.3d 1534, 1535, 11 N.Y.S.3d 757 [4th Dept. 2015], lv denied 26 N.Y.3d 904, 2015 WL 5254753 [2015] ).