MUNDO, JESUS, PEOPLE v ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
997
KA 11-00629
PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND MARTOCHE, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
JESUS MUNDO, DEFENDANT-APPELLANT.
SETH M. AZRIA, SYRACUSE, FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.
Appeal from an order of the Onondaga County Court (Joseph E.
Fahey, J.), entered February 7, 2011. The order determined that
defendant is a level two risk pursuant to the Sex 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 two risk under the Sex Offender Registration Act ([SORA]
Correction Law § 168 et seq.). We reject defendant’s contention that
County Court’s assessment of 15 points for a history of drug or
alcohol abuse, which was based upon the recommendation in the risk
assessment instrument prepared by the Board of Examiners of Sex
Offenders, is not supported by the requisite clear and convincing
evidence (see generally § 168-n [3]). Although defendant testified at
the SORA hearing that he did not have a history of drug or alcohol
abuse, the court was entitled to reject that testimony inasmuch as it
was contradicted by defendant’s statements regarding his marihuana and
alcohol use that were set forth in the presentence report (see People
v Longtin, 54 AD3d 1110, 1111, lv denied 11 NY3d 714). Furthermore,
the record establishes that 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.
Entered: September 28, 2012 Frances E. Cafarell
Clerk of the Court