| People v Montanez |
| 2011 NY Slip Op 07099 [88 AD3d 1278] |
| October 7, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v EdwinMontanez, Appellant. |
—[*1] Scott D. McNamara, District Attorney, Utica (John J. Raspante of counsel), forrespondent.
Appeal from an order of the Supreme Court, Oneida County (Barry M. Donalty, A.J.),entered October 2, 2009. The order determined that defendant is a level three risk pursuant to theSex Offender Registration Act.
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 three riskpursuant to the Sex Offender Registration Act ([SORA] Correction Law § 168 etseq.). We reject defendant's contention that the assessment of 15 points against him under therisk factor for drug or alcohol abuse is not supported by the requisite clear and convincingevidence (see generally § 168-n [3]; Sex Offender Registration Act: RiskAssessment 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 age9, alcohol at age 12, cocaine at age 25 and crack cocaine by the time he was in his 30s. Althoughthe RAI sets forth that defendant had stopped using all substances for a period of time, it furtherdescribes his relapse four years prior to the instant offense. In addition, defendant admitted thathe 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 oralcohol abuse (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at15 [2006]).
Defendant failed to preserve for our review his contention that he was denied due processbecause 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 NY3d 829 [2007]; see also People v Neuer, 86 AD3d926 [2011]; People v Palmer,68 AD3d 1364, 1365 [2009]). In any event, the record demonstrates that defendant wastimely and adequately notified of the purpose of the SORA hearing and that his attorney wasprovided with the RAI, case summary and presentence report 37 days before the hearing. Wetherefore conclude that defendant and his attorney were afforded an ample opportunity to respondto all aspects of the risk level assessments of the People and the Board of Examiners of SexOffenders and thus that defendant was not denied due process (see generally People v Warren, 42AD3d 593, 593-594 [2007], lv denied 9 NY3d 810 [2007]; People vCureton, 299 AD2d 532 [2002], lv denied 99 NY2d 627 [2003]).[*2]
We reject defendant's further contention that SupremeCourt erred in assessing 30 points against him under the risk factor for the number and nature ofprior crimes, including a prior violent felony. Defendant was convicted of two violent felonies in1981 and contends that the lapse of time between those prior convictions and the instant offenserenders 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 (seeSex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 13-14 [2006]).In any event, the recency of an offender's prior felony or sex crime is taken into account in riskfactor 10 and, inasmuch as defendant's prior felonies occurred more than three years prior to theinstant 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 infailing to determine that he was entitled to a downward departure to a level two risk, havingfailed to request such a departure (seePeople v Ratcliff, 53 AD3d 1110 [2008], lv denied 11 NY3d 708 [2008]). In anyevent, we conclude that "defendant failed to present clear and convincing evidence of specialcircumstances justifying a downward departure" (People v McDaniel, 27 AD3d 1158, 1159 [2006], lv denied7 NY3d 703 [2006]; see People vFredendall, 83 AD3d 1545 [2011]). Present—Smith, J.P., Centra, Carni, Greenand Martoche, JJ.