Opinion
06-30-2017
The PEOPLE of the State of New York, Respondent, v. Frank L. MORRISON, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Nicholas P. Difonzo of Counsel), for Defendant–Appellant. Lawrence Friedman, District Attorney, Batavia (Shirley A. Gorman of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Nicholas P. Difonzo of Counsel), for Defendant–Appellant.
Lawrence Friedman, District Attorney, Batavia (Shirley A. Gorman of Counsel), for Respondent.
PRESENT: WHALEN, P.J., PERADOTTO, DeJOSEPH, CURRAN, AND WINSLOW, JJ.
MEMORANDUM:
Defendant appeals from an order of Genesee County Court that affirmed an order of Elba Town Court determining that he is a level two risk pursuant to the Sex Offender Registration Act ( Correction Law § 168 et seq. ). Preliminarily, we note that "[a]n appeal may be taken to the appellate division as of right from an order of a county court ... which determines an appeal from a judgment of a lower court" ( CPLR 5703[b] ), and here County Court determined the appeal from an order of Town Court, not a judgment. Nonetheless, we conclude that this appeal from an "order" rather than a "judgment" is properly before us as of right pursuant to CPLR 5703 (b) inasmuch as " ‘the rights of the parties are for all practical purposes finally determined’ " ( People v. Willis, 130 A.D.3d 1470, 1471, 12 N.Y.S.3d 758 ; see Highlands Ins. Co. v. Maddena Constr. Co., 109 A.D.2d 1071, 1072, 487 N.Y.S.2d 215 ).
With respect to the merits, we reject defendant's contention that the People failed to present clear and convincing evidence to support the assessment of 15 points under risk factor 11 for defendant's history of alcohol and drug abuse (see Correction Law § 168–n [3 ] ). That assessment is sufficiently supported by reliable hearsay evidence inasmuch as the presentence report (PSR) shows that defendant was convicted in Florida in 2004 for driving under the influence (see Fla. Stat. § 316.193 [1] ), and was shortly thereafter arrested again for the same offense; defendant's then–13–year–old daughter reported in a supporting deposition that defendant smoked marihuana with her on multiple occasions approximately two months before he sexually abused the daughter's friend; and the daughter's mother reported in a statement attached to the PSR that defendant had a history of daily drug use (see People v. Leeson, 148 A.D.3d 1677, 1678, 50 N.Y.S.3d 652, lv. denied 29 N.Y.3d 912, 2017 WL 2468547 [June 8, 2017] ; People v. Regan, 46 A.D.3d 1434, 1434–1435, 848 N.Y.S.2d 787 ; People v. Lewis, 37 A.D.3d 689, 689–690, 830 N.Y.S.2d 312, lv. denied 8 N.Y.3d 814, 838 N.Y.S.2d 840, 870 N.E.2d 160 ; see generally 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 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.