Opinion
2012-09-28
The PEOPLE of the State of New York, Respondent, v. Jesus MUNDO, Defendant–Appellant.
Seth M. Azria, Syracuse, for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
Seth M. Azria, Syracuse, for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND MARTOCHE, JJ.
MEMORANDUM:
Defendant appeals from an order determining that he is a level two risk under the Sex Offender Registration Act ( [SORA] Correction Law § 168 et seq.). We reject defendant's contention that County Court's assessment of 15 points for a history of drug or alcohol abuse, which was based upon the recommendation in the risk assessment instrument prepared by the Board of Examiners of Sex Offenders, is not supported by the requisite clear and convincing evidence ( see generally § 168–n [3] ). Although defendant testified at the SORA hearing that he did not have a history of drug or alcohol abuse, the court was entitled to reject that testimony inasmuch as it was contradicted by defendant's statements regarding his marihuana and alcohol use that were set forth in the presentence report ( see People v. Longtin, 54 A.D.3d 1110, 1111, 864 N.Y.S.2d 203,lv. denied11 N.Y.3d 714, 873 N.Y.S.2d 269, 901 N.E.2d 763). Furthermore, the record establishes that defendant 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.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.