Opinion
958 KA 19-02204
11-19-2021
The PEOPLE of the State of New York, Respondent, v. Joshua STEWART, Defendant-Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (TIMOTHY S. DAVIS OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (TIMOTHY S. DAVIS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, LINDLEY, CURRAN, 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 ( Correction Law § 168 et seq. ). We reject defendant's contention that County Court's assessment of 15 points under risk factor 11 for history of drug or alcohol abuse, which was based on the recommendation in the risk assessment instrument prepared by the Board of Examiners of Sex Offenders, is not supported by clear and convincing evidence (see § 168-n [3]). Although defendant asserted that his prior drug or alcohol use was recreational, occasional, and did not constitute abuse, his admissions to the Probation Department regarding his daily drinking habits during the time period of the offense established "a pattern of drug or alcohol use in [the] defendant's history" evincing substance abuse ( People v. Kowal , 175 A.D.3d 1057, 1057, 105 N.Y.S.3d 688 [4th Dept. 2019] [internal quotation marks omitted]; see People v. Richardson , 197 A.D.3d 878, 879, 153 N.Y.S.3d 277 [4th Dept. 2021] ; cf. People v. Palmer , 20 N.Y.3d 373, 378-379, 960 N.Y.S.2d 719, 984 N.E.2d 917 [2013] ). Moreover, defendant admitted that he "provided marihuana to the [underage] victim[ ] ... during the course of his sexual misconduct" against her and that he smoked marihuana at least once a week during that time period ( People v. Caleb , 170 A.D.3d 1618, 1619, 94 N.Y.S.3d 509 [4th Dept. 2019], lv denied 33 N.Y.3d 910, 2019 WL 2622702 [2019] ).