Opinion
2011-10-7
The PEOPLE of the State of New York, Respondent,v.Edwin MONTANEZ, Defendant–Appellant.
Donald R. Gerace, Utica, for Defendant–Appellant.Scott D. McNamara, District Attorney, Utica (John J. Raspante of Counsel), for Respondent.
Donald R. Gerace, Utica, for Defendant–Appellant.Scott D. McNamara, District Attorney, Utica (John J. Raspante of Counsel), for Respondent.
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.). We reject defendant's contention that the assessment of 15 points against him under the risk factor for drug or alcohol abuse is not supported by the requisite clear and convincing evidence ( see generally § 168–n [3]; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 15 [2006] ). The risk assessment instrument (RAI) presented by the People contained defendant's admissions that he began using marihuana at age 9, alcohol at age 12, cocaine at age 25 and crack cocaine by the time he was in his 30s. Although the RAI sets forth that defendant had stopped using all substances for a period of time, it further describes his relapse four years prior to the instant offense. In addition, defendant admitted that he was intoxicated at the time of the rape of which he was convicted, and that intoxication, standing alone, would warrant the assessment of 15 points under the risk factor for drug or alcohol
abuse (Risk Assessment Guidelines and Commentary, at 15).
Defendant failed to preserve for our review his contention that he was denied due process because he did not receive all of the specified information set forth in Correction Law § 168–n (3) prior to the SORA hearing ( see People v. Charache, 9 N.Y.3d 829, 841 N.Y.S.2d 223, 873 N.E.2d 267; see also People v. Neuer, 86 A.D.3d 926, 926 N.Y.S.2d 793; People v. Palmer, 68 A.D.3d 1364, 1365, 892 N.Y.S.2d 232). In any event, the record demonstrates that defendant was timely and adequately notified of the purpose of the SORA hearing and that his attorney was provided with the RAI, case summary and presentence report 37 days before the hearing. We therefore conclude that defendant and his attorney were afforded an ample opportunity to respond to all aspects of the risk level assessments of the People and the Board of Examiners of Sex Offenders and thus that defendant was not denied due process ( see generally People v. Warren, 42 A.D.3d 593, 593–594, 840 N.Y.S.2d 176, lv. denied 9 N.Y.3d 810, 844 N.Y.S.2d 786, 876 N.E.2d 515; People v. Cureton, 299 A.D.2d 532, 750 N.Y.S.2d 506, lv. denied 99 N.Y.2d 627, 760 N.Y.S.2d 108, 790 N.E.2d 282).
We reject defendant's further contention that Supreme Court erred in assessing 30 points against him under the risk factor for the number and nature of prior crimes, including a prior violent felony. Defendant was convicted of two violent felonies in 1981 and contends that the lapse of time between those prior convictions and the instant offense renders the assessment of points under that risk factor “constitutionally unfair.” That risk factor, however, does not take into account the timing of any particular prior violent felony ( see Risk Assessment Guidelines and Commentary, at 13–14). In any event, the recency of an offender's prior felony or sex crime is taken into account in risk factor 10 and, inasmuch as defendant's prior felonies occurred more than three years prior to the instant offense, he was not assessed any points under that risk factor.
Finally, defendant failed to preserve for our review his contention that the court erred in failing to determine that he was entitled to a downward departure to a level two risk, having failed to request such a departure ( see People v. Ratcliff, 53 A.D.3d 1110, 862 N.Y.S.2d 686, lv. denied 11 N.Y.3d 708, 868 N.Y.S.2d 600, 897 N.E.2d 1084). In any event, we conclude that “defendant failed to present clear and convincing evidence of special circumstances justifying a downward departure” ( People v. McDaniel, 27 A.D.3d 1158, 1159, 810 N.Y.S.2d 723, lv. denied 7 N.Y.3d 703, 819 N.Y.S.2d 870, 853 N.E.2d 241; see People v. Fredendall, 83 A.D.3d 1545, 921 N.Y.S.2d 606).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.