Opinion
1234 KA 17–00903
11-16-2018
The PEOPLE of the State of New York, Respondent, v. Timothy WALKER, 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: SMITH, J.P., CARNI, LINDLEY, DEJOSEPH, AND WINSLOW, 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 ( Correction Law § 168 et seq. ), defendant contends that Supreme Court erred in assessing 15 points under risk factor 11, which permits the assessment of points for a defendant's history of drug or alcohol abuse. We conclude that clear and convincing evidence supports the assessment of those points (see People v. Mundo, 98 A.D.3d 1292, 1293, 951 N.Y.S.2d 782 [4th Dept. 2012], lv denied 20 N.Y.3d 855, 2013 WL 69135 [2013] ; see generally § 168–n [3] ), and we therefore reject defendant's contention.
The People introduced evidence that, during an interview with the probation officer who prepared the presentence investigation report for the underlying conviction, defendant admitted that he abused marihuana beginning at age 13 and that he had repeatedly engaged in treatment for that abuse over a five-year period, to no avail. Defendant also stated on several occasions that the only time he was drug free was when he was incarcerated. Testing upon defendant's entry into the state prison system verified his need for treatment, and he was assigned to the Alcohol and Substance Abuse Treatment program. Although defendant is correct that an assessment of points under risk factor 11 is not proper where a defendant's "more recent history is one of prolonged abstinence" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 15 [2006]; see People v. Wilbert, 35 A.D.3d 1220, 1221, 825 N.Y.S.2d 884 [4th Dept. 2006] ; People v. Abdullah, 31 A.D.3d 515, 516, 818 N.Y.S.2d 267 [2d Dept. 2006] ), in this case defendant admitted that his only period of abstinence occurred while he was incarcerated. It is well settled that "[t]he fact that defendant may have abstained from the use of alcohol and drugs while incarcerated is not necessarily predictive of his behavior when [he is] no longer under such supervision" ( People v. Lowery, 93 A.D.3d 1269, 1270, 940 N.Y.S.2d 745 [4th Dept. 2012], lv denied 19 N.Y.3d 807, 2012 WL 2401529 [2012] [internal quotation marks omitted]; see People v. Kunz, 150 A.D.3d 1696, 1697, 53 N.Y.S.3d 788 [4th Dept. 2017], lv denied 29 N.Y.3d 916, 64 N.Y.S.3d 666, 86 N.E.3d 558 [2017] ; People v. Jackson, 134 A.D.3d 1580, 1580–1581, 22 N.Y.S.3d 749 [4th Dept. 2015] ). In addition, "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" ( Mundo, 98 A.D.3d at 1293, 951 N.Y.S.2d 782 ; see People v. Newman, 148 A.D.3d 1600, 1601, 50 N.Y.S.3d 706 [4th Dept. 2017], lv denied 29 N.Y.3d 914, 2017 WL 2751863 [2017] ).