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People v. Newman

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
Mar 24, 2017
148 A.D.3d 1600 (N.Y. App. Div. 2017)

Opinion

223 KA 15-00984.

03-24-2017

The PEOPLE of the State of New York, Respondent, v. Michael NEWMAN, Defendant–Appellant.

Timothy P. Donaher, Public Defender, Rochester (Kimberly F. Duguay of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.


Timothy P. Donaher, Public Defender, Rochester (Kimberly F. Duguay of Counsel), for Defendant–Appellant.

Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.

PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, DeJOSEPH, AND SCUDDER, JJ.

MEMORANDUM: On appeal from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act ( [SORA] Correction Law § 168 et seq. ), defendant contends that Supreme Court engaged in impermissible double-counting because his underlying conviction of criminal sexual act in the first degree (Penal Law § 130.50[4] ), which is addressed by risk factor 2, included as an element the age of the victim while the age of the victim is also addressed under risk factor 5. We reject that contention. To preclude consideration of the victim's age under risk factor 5 in cases in which the victim's age is an element of the underlying offense would contravene SORA's protective purpose (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 2 [2006]; see also People v. Cabrera, 91 A.D.3d 479, 480, 937 N.Y.S.2d 14, lv. denied 19 N.Y.3d 801, 2012 WL 1500098 ; see generally People v. Alemany, 13 N.Y.3d 424, 430–431, 893 N.Y.S.2d 448, 921 N.E.2d 140 ). We likewise reject defendant's challenge to the court's assessment of 15 points for a history of drug or alcohol abuse. Defendant's case summary and presentence report indicated that he began to use marihuana at the age of 15, and started to drink alcohol at the age of 21. Defendant also admitted that he had "a prior history of treatment for his chemical use [and] ... that he did not finish" those treatment programs. "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. denied 9 N.Y.3d 809, 844 N.Y.S.2d 785, 876 N.E.2d 514 ; see People v. Jackson, 134 A.D.3d 1580, 1580, 22 N.Y.S.3d 749 ). Defendant's assertions of sobriety were undermined by the fact that he "was required to attend 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. Lowery, 140 A.D.3d 1141, 1142, 35 N.Y.S.3d 684, lv. denied 28 N.Y.3d 903, 2016 WL 4999884 ; People v. Perez, 138 A.D.3d 1081, 1081, 28 N.Y.S.3d 905, lv. denied 27 N.Y.3d 913, 2016 WL 4533642 ). Although defendant contends that he is "expected to complete the treatment before his release," we note that any " ‘recent history of abstinence while incarcerated is not necessarily predictive of his behavior when no longer under such supervision’ " (People v. Vangorder, 72 A.D.3d 1614, 1614, 899 N.Y.S.2d 708 ; see Jackson, 134 A.D.3d at 1580–1581, 22 N.Y.S.3d 749 ; 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 ).

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.


Summaries of

People v. Newman

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
Mar 24, 2017
148 A.D.3d 1600 (N.Y. App. Div. 2017)
Case details for

People v. Newman

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. MICHAEL NEWMAN…

Court:SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department

Date published: Mar 24, 2017

Citations

148 A.D.3d 1600 (N.Y. App. Div. 2017)
50 N.Y.S.3d 706
2017 N.Y. Slip Op. 2220

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