Opinion
983 KA 21-00310
02-03-2023
The PEOPLE of the State of New York, Respondent, v. Michael WILGOSZ, Defendant-Appellant.
NICHOLAS B. ROBINSON, PUBLIC DEFENDER, LOCKPORT (THERESA L. PREZIOSO OF COUNSEL), FOR DEFENDANT-APPELLANT. BRIAN D. SEAMAN, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR RESPONDENT.
NICHOLAS B. ROBINSON, PUBLIC DEFENDER, LOCKPORT (THERESA L. PREZIOSO OF COUNSEL), FOR DEFENDANT-APPELLANT.
BRIAN D. SEAMAN, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CURRAN, MONTOUR, AND OGDEN, 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 he was denied due process as a result of the nine-year delay between his release from jail on the underlying sex offense and the SORA determination. Although defendant challenged the timeliness of the proceeding, he never alleged that the delay deprived him of due process. He therefore failed to preserve that contention for our review (see People v. Smith , 103 A.D.3d 616, 617, 958 N.Y.S.2d 625 [2d Dept. 2013], lv denied 21 N.Y.3d 857, 2013 WL 2436361 [2013] ). In any event, we conclude that the contention lacks merit (see People v. Gallagher , 129 A.D.3d 1252, 1253, 11 N.Y.S.3d 712 [3d Dept. 2015], lv denied 26 N.Y.3d 908, 2015 WL 5972484 [2015] ; People v. Martin , 119 A.D.3d 1385, 1385, 989 N.Y.S.2d 226 [4th Dept. 2014], lv denied 24 N.Y.3d 906, 2014 WL 5368760 [2014] ; People v. Wilkes , 53 A.D.3d 1073, 1074, 862 N.Y.S.2d 232 [4th Dept. 2008], lv denied 11 N.Y.3d 710, 872 N.Y.S.2d 72, 900 N.E.2d 555 [2008] ).
We reject defendant's further contention that County Court erred in assessing points under risk factor 11 based on a history of alcohol or drug abuse and risk factor 12 for failure to accept responsibility. The evidence at the SORA hearing established that defendant told the probation officer who prepared the presentence investigation report that he began drinking alcohol and smoking marihuana when he was 13 years old, and he testified at the SORA hearing that he continued to use marihuana regularly until he was sentenced. That evidence supports the court's assessment of points under risk factor 11 (see People v. Kunz , 150 A.D.3d 1696, 1696-1697, 53 N.Y.S.3d 788 [4th Dept. 2017], lv denied 29 N.Y.3d 916, 2017 WL 3908167 [2017] ). With respect to risk factor 12, the court's assessment of points was warranted by defendant's denial of guilt to the probation officer who prepared his presentence investigation report, as well as by his testimony at the SORA hearing in which he repeatedly denied that he had engaged in sexual intercourse with the victim (see People v. Anderson , 138 A.D.3d 1435, 1435, 29 N.Y.S.3d 209 [4th Dept. 2016], lv denied 27 N.Y.3d 912, 2016 WL 4532478 [2016] ; see generally People v. Ford , 25 N.Y.3d 939, 941, 6 N.Y.S.3d 541, 29 N.E.3d 888 [2015] ). We therefore conclude that the court properly determined the appropriate risk level.