Opinion
05-05-2017
The PEOPLE of the State of New York, Respondent, v. Robert J. KUNZ, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Kimberly F. Duguay of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (Kimberly F. Duguay of Counsel), for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
PRESENT: CARNI, J.P., LINDLEY, DeJOSEPH, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM:
Defendant appeals from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act ( [SORA] Correction Law § 168 et seq. ). Contrary to defendant's contention, County Court properly assessed 15 points under risk factor 11 for a history of drug or alcohol abuse inasmuch as "[t]he 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 th[at] risk factor" (People v. Ramos, 41 A.D.3d 1250, 1250, 839 N.Y.S.2d 383, lv. denied 9 N.Y.3d 809, 844 N.Y.S.2d 785, 876 N.E.2d 514 ; see People v. Jackson, 134 A.D.3d 1580, 1580, 22 N.Y.S.3d 749 ). 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 and or [sic ] alcohol at the time of the offense" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 15 [2006] [emphasis added] ). Indeed, "[a]n offender need not be abusing alcohol or drugs at the time of the instant offense to receive points" for that risk factor (id.; see People v. Lewis, 50 A.D.3d 1567, 1568, 856 N.Y.S.2d 787, lv. denied 11 N.Y.3d 702, 864 N.Y.S.2d 389, 894 N.E.2d 653 ; see generally People v. Palmer, 20 N.Y.3d 373, 377–378, 960 N.Y.S.2d 719, 984 N.E.2d 917 ).
Here, according to the presentence report, defendant "started using marihuana as a teenager," and "he used this substance regularly" (see People v. Merkley, 125 A.D.3d 1479, 1479, 3 N.Y.S.3d 848 ; People v. Carswell, 8 A.D.3d 1073, 1073, 778 N.Y.S.2d 646, lv. denied 3 N.Y.3d 607, 785 N.Y.S.2d 24, 818 N.E.2d 666 ). The extent and regularity of defendant's marihuana use was bolstered by a previous diagnosis of "Cannabis Abuse," which was also noted in the presentence report. Moreover, "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" (People v. Mundo, 98 A.D.3d 1292, 1293, 951 N.Y.S.2d 782, lv. denied 20 N.Y.3d 855, 2013 WL 69135 ; see People v. Perez, 138 A.D.3d 1081, 1081, 28 N.Y.S.3d 905, lv. denied 27 N.Y.3d 913, 2016 WL 4533642 ). Defendant also admitted that he "last used marihuana in October of 2002," which was proximate in time to his arrest for the underlying offense (see Lewis, 50 A.D.3d at 1568, 856 N.Y.S.2d 787 ). Although defendant completed an Alcohol and Substance Abuse Treatment Program, a " ‘recent history of abstinence while incarcerated is not necessarily predictive of his behavior when no longer under such supervision’ " (People v. Vangorder, 72 A.D.3d 1614, 1614, 899 N.Y.S.2d 708 ; see Jackson, 134 A.D.3d at 1580–1581, 22 N.Y.S.3d 749 ; People v. Urbanski, 74 A.D.3d 1882, 1883, 903 N.Y.S.2d 648, lv. denied 15 N.Y.3d 707, 2010 WL 3583295 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.