Opinion
950 KA 19-01439
11-20-2020
The PEOPLE of the State of New York, Respondent, v. Lawayne TURNER, Defendant-Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, TROUTMAN, BANNISTER, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs. Memorandum: Defendant appeals from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act ( [SORA] Correction Law § 168 et seq. ). Defendant failed to preserve for our review his contentions that County Court violated his due process rights by accepting his waiver of the right to appear at the SORA hearing (see People v. Poleun , 119 A.D.3d 1378, 1378-1379, 988 N.Y.S.2d 827 [4th Dept. 2014], affd 26 N.Y.3d 973, 18 N.Y.S.3d 586, 40 N.E.3d 563 [2015] ; People v. Slishevsky , 174 A.D.3d 1399, 1399, 103 N.Y.S.3d 739 [4th Dept. 2019], lv denied 34 N.Y.3d 908, 2020 WL 205912 [2020] ; People v. Akinpelu , 126 A.D.3d 1451, 1452, 6 N.Y.S.3d 347 [4th Dept. 2015], lv denied 25 N.Y.3d 912, 2015 WL 3951953 [2015] ), by conducting the hearing in his absence (see People v. Wall , 112 A.D.3d 900, 901, 977 N.Y.S.2d 394 [2d Dept. 2013] ), and by allegedly failing to provide him with certain documents prior to the hearing (see People v. Wise , 127 A.D.3d 834, 834-835, 6 N.Y.S.3d 292 [2d Dept. 2015], lv denied 25 N.Y.3d 913, 2015 WL 3971386 [2015] ; People v. Montanez , 88 A.D.3d 1278, 1279, 930 N.Y.S.2d 380 [4th Dept. 2011] ). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see People v. Roman , 179 A.D.3d 1455, 1455, 114 N.Y.S.3d 911 [4th Dept. 2020], lv denied 35 N.Y.3d 907, 2020 WL 3097077 [2020] ).
We reject defendant's further contention that the court erred in assessing 15 points under risk factor 11. The SORA guidelines justify the addition of 15 points under risk factor 11 "if an offender has a substance abuse history or was abusing drugs ... or alcohol at the time of the offense" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 15 [2006] [emphasis added] ). Thus, the points are properly assessed where the People establish a history of substance abuse by clear and convincing evidence (see People v. Kowal , 175 A.D.3d 1057, 1057, 105 N.Y.S.3d 688 [4th Dept. 2019] ) inasmuch as "[a]n offender need not [have been] abusing alcohol or drugs at the time of the instant offense to receive points" for that risk factor ( 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] [internal quotation marks omitted]; see People v. Arnold , 156 A.D.3d 1447, 1448, 65 N.Y.S.3d 861 [4th Dept. 2017], lv denied 31 N.Y.3d 903, 2018 WL 1527805 [2018] ). Here, the evidence at the SORA hearing established that defendant had participated in an outpatient treatment program near the time of the underlying offense, that defendant had been referred to and engaged in substance abuse treatment while incarcerated, that defendant admitted to a history of drug use, and that he had been diagnosed as cannabis and alcohol dependent (see Kunz , 150 A.D.3d at 1697, 53 N.Y.S.3d 788 ). Although defendant appears to have abstained from drug and alcohol use while incarcerated, a "recent history of abstinence while incarcerated is not necessarily predictive of his behavior when no longer under such supervision" ( id. ).