| People v St. Jean |
| 2012 NY Slip Op 08967 [101 AD3d 1684] |
| December 21, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Edouin St. Jean,Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Susan C. Azzarelli of counsel), forrespondent.
Appeal from an order of the Onondaga County Court (Joseph E. Fahey, J.), dated September 23,2011. The order determined that defendant is a level two risk pursuant to the Sex Offender RegistrationAct.
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 two risk pursuant to the SexOffender Registration Act (Correction Law § 168 et seq.), defendant contends thatCounty Court's determination of his risk level is not supported by the requisite clear and convincingevidence (see § 168-n [3]). We reject that contention. "The statements in the casesummary and presentence report with respect to defendant's substance abuse constitute reliablehearsay supporting the court's assessment of points under the risk factor for history of drug or alcoholabuse" (People v Ramos, 41 AD3d1250, 1250 [2007], lv denied 9 NY3d 809 [2007]). Defendant, who admitted to aprobation officer that he occasionally overconsumed alcohol, used marihuana three to four times aweek, and used ecstasy whenever he could obtain it, believed that he had a substance abuse problem.The court was entitled to reject defendant's contention at the hearing that his use of alcohol and drugsdid not constitute "substance abuse" inasmuch as that contention conflicted with his prior statements asset forth in the presentence report (seePeople v Woodard, 63 AD3d 1655, 1656 [2009], lv denied 13 NY3d 706 [2009]).
Defendant failed to preserve for our review his contention that a downward departure from hispresumptive risk level was warranted (seePeople v Gardiner, 92 AD3d 1228, 1229 [2012], lv denied 19 NY3d 801 [2012]).In any event, defendant's contention is without merit inasmuch as defendant failed to present "clear andconvincing evidence of special circumstances justifying a downward departure" (People v McDaniel, 27 AD3d 1158,1159 [2006], lv denied 7 NY3d 703 [2006]). Present—Scudder, P.J., Centra, Fahey,Carni and Valentino, JJ.