Opinion
No. KA 06-00544.
June 8, 2007.
Appeal from an order of the Supreme Court, Monroe County (Frank P. Geraci, Jr., A.J.), entered January 26, 2006. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.
EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (NANCY A. GILLIGAN OF COUNSEL), FOR RESPONDENT.
Present — Martoche, J.P., Lunn, Peradotto, Green and Pine, JJ.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: On appeal from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.), defendant contends that Supreme 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 ( see People v Vacanti, 26 AD3d 732, lv denied 6 NY3d 714; People v Vaughn, 26 AD3d 776, 777; People v Dickison, 24 AD3d 980, 981, lv denied 6 NY3d 709). We cannot conclude that the court erred in assessing 15 points under that risk factor based on defendant's unrefuted history of substance abuse from 1991 to the time of defendant's sentencing in 2001, despite an alleged five-year period of abstinence while incarcerated ( see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 15 [2006]).