Opinion
2012-12-21
The PEOPLE of the State of New York, Respondent, v. Edouin ST. JEAN, Defendant–Appellant.
Theodore W. Stenuf, Minoa, for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Susan C. Azzarelli of Counsel), for Respondent.
Theodore W. Stenuf, Minoa, for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Susan C. Azzarelli of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, CARNI, AND VALENTINO, JJ.
MEMORANDUM:
On appeal from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.), defendant contends that County Court's determination of his risk level is not supported by the requisite clear and convincing evidence ( see§ 168–n [3] ). We reject that contention. “The statements in the case summary and presentence report with respect to defendant's substance abuse constitute reliable hearsay supporting the court's assessment of points under the risk factor for history of drug or alcohol abuse” ( People v. Ramos, 41 A.D.3d 1250, 1250, 839 N.Y.S.2d 383,lv. denied9 N.Y.3d 809, 844 N.Y.S.2d 785, 876 N.E.2d 514). Defendant, who admitted to a probation officer that he occasionally overconsumed alcohol, used marihuana three to four times a week, and used ecstasy whenever he could obtain it, believed that he had a substance abuse problem. The court was entitled to reject defendant's contention at the hearing that his use of alcohol and drugs did not constitute “substance abuse” inasmuch as that contention conflicted with his prior statements as set forth in the presentence report ( see People v. Woodard, 63 A.D.3d 1655, 1656, 880 N.Y.S.2d 450,lv. denied13 N.Y.3d 706, 2009 WL 2959607).
Defendant failed to preserve for our review his contention that a downward departure from his presumptive risk level was warranted ( see People v. Gardiner, 92 A.D.3d 1228, 1229, 938 N.Y.S.2d 389,lv. denied19 N.Y.3d 801, 2012 WL 1502782). In any event, defendant's contention is without merit inasmuch as defendant failed to present “clear and convincing evidence of special circumstances justifying a downward departure” ( People v. McDaniel, 27 A.D.3d 1158, 1159, 810 N.Y.S.2d 723,lv. denied7 N.Y.3d 703, 819 N.Y.S.2d 870, 853 N.E.2d 241).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.