Opinion
275 KA 19-02170
08-26-2021
The PEOPLE of the State of New York, Respondent, v. Jason RICHARDSON, Defendant-Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (TIMOTHY S. DAVIS OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (TIMOTHY S. DAVIS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., LINDLEY, CURRAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from 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 ([SORA] Correction Law § 168 et seq. ), defendant contends that County Court erred in assessing points under risk factors 11 and 12, and that after subtracting those points he should be classified as a level two risk. We reject that contention, and thus we affirm.
Initially, we note that, although defendant contended at the SORA hearing that he was entitled to a downward departure to a level two risk from the presumptive level three risk yielded by his total point score on the risk assessment instrument, he has not raised that contention on appeal, and thus it is deemed abandoned (see People v. Liddle , 159 A.D.3d 1286, 1287 n., 74 N.Y.S.3d 115 [3d Dept. 2018], lv denied 32 N.Y.3d 905, 2018 WL 4440629 [2018] ; People v. Encarnacion , 138 A.D.3d 1497, 1498, 30 N.Y.S.3d 781 [4th Dept. 2016] ).
Pursuant to the SORA Risk Assessment Guidelines and Commentary (2006) (Guidelines), "offenders are assessed 15 points under risk factor 11 if they have a history of drug or alcohol abuse or if they were abusing drugs or alcohol at the time of the sex offense" ( People v. Palmer , 20 N.Y.3d 373, 376, 960 N.Y.S.2d 719, 984 N.E.2d 917 [2013] ; see 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] ; People v. Kunz , 150 A.D.3d 1696, 1697, 53 N.Y.S.3d 788 [4th Dept. 2017], lv denied 29 N.Y.3d 916, 2017 WL 3908167 [2017] ). Here, although there is no evidence that defendant used drugs during the offense at issue, the People introduced evidence that he was convicted of criminal possession of a controlled substance and possession of marihuana, that he admitted using alcohol, marihuana, acid and crack cocaine at other times, that he sought treatment for substance abuse and that, after a period of sobriety, he returned to using drugs and alcohol. The People also established that defendant admitted using alcohol to self-medicate during bouts of depression and anxiety and that, although he said that he "would benefit from intervention," he refused to participate in substance abuse counseling in prison. Thus, the court properly assessed points under risk factor 11 because the People established, by clear and convincing evidence, a "pattern of drug or alcohol use in ... defendant's history" evincing substance abuse ( People v. Kowal , 175 A.D.3d 1057, 1057, 105 N.Y.S.3d 688 [4th Dept. 2019] [internal quotation marks omitted]; see Turner , 188 A.D.3d at 1746-1747, 132 N.Y.S.3d 908 ). Next, points are properly assessed under risk factor 12 where, as here, an offender has refused sex offender treatment, because "such conduct is powerful evidence of the offender's continued denial and his [or her] unwillingness to alter his [or her] behavior" ( People v. Ford , 25 N.Y.3d 939, 941, 6 N.Y.S.3d 541, 29 N.E.3d 888 [2015] [internal quotation marks omitted]; see People v. Loughlin , 145 A.D.3d 1426, 1427, 44 N.Y.S.3d 821 [4th Dept. 2016], lv denied 29 N.Y.3d 906, 2017 WL 1719017 [2017] ). "Refusal contemplates an intentional explicit rejection of what is being offered" ( Ford , 25 N.Y.3d at 941, 6 N.Y.S.3d 541, 29 N.E.3d 888 ). Furthermore, the Guidelines "do not contain exceptions with respect to a defendant's reasons for refusing to participate in treatment" ( People v. Graves , 162 A.D.3d 1659, 1660, 79 N.Y.S.3d 798 [4th Dept. 2018], lv denied 32 N.Y.3d 906, 89 N.Y.S.3d 112, 113 N.E.3d 946 [2018] [internal quotation marks omitted]). Here, defendant failed to introduce any evidence to support his assertion that the facility in which he was confined did not provide sex offender treatment. In any event, he admitted that he was unwilling to transfer to a correctional facility where he could participate in such treatment, thereby establishing an "intentional explicit rejection of what [was] being offered" ( Ford , 25 N.Y.3d at 941, 6 N.Y.S.3d 541, 29 N.E.3d 888 ).