ADAMS, RODNEY, PEOPLE v ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1469
KA 11-02359
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND VALENTINO, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
RODNEY ADAMS, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN C. MINISTERO OF
COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF
COUNSEL), FOR RESPONDENT.
Appeal from an order of the Erie County Court (Kenneth F. Case,
J.), entered September 28, 2011. The order determined that defendant
is a level three 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 three risk pursuant to the Sex Offender Registration Act
([SORA] Correction Law § 168 et seq.). Contrary to defendant’s
contention, County Court complied with the statutory mandate that the
court set forth in the order “the findings of fact and conclusions of
law” on which the determination is based (§ 168-n [3]; see People v
Carter, 35 AD3d 1023, 1023-1024, lv denied 8 NY3d 810). We reject
defendant’s further contention that the People failed to present clear
and convincing evidence to support the assessment of 15 points against
him for a history of substance abuse (see generally People v Thompson,
66 AD3d 1455, 1455-1456, lv denied 13 NY3d 714). That assessment is
supported by the reliable hearsay contained in the presentence report
and the case summary (see People v Rotterman, 96 AD3d 1467, 1468, lv
denied 19 NY3d 813; Thompson, 66 AD3d at 1456; see generally People v
Mingo, 12 NY3d 563, 573), which incorporated information from the
presentence report. The presentence report set forth that defendant
admitted to using marihuana and cocaine on a daily basis before his
incarceration, and that admission was included in the case summary.
At the SORA hearing, defendant claimed that he lied at the time of the
presentence report to gain an advantageous sentence. Inasmuch as
defendant admitted that he lied in order to benefit himself, the court
was justified in discounting his statement at the hearing and
assessing points for a history of substance abuse under risk factor
11. Finally, we reject defendant’s contention that he was denied
effective assistance of counsel at the SORA hearing (see Rotterman, 96
-2- 1469
KA 11-02359
AD3d at 1468; People v Bowles, 89 AD3d 171, 181, lv denied 18 NY3d
807).
Entered: December 28, 2012 Frances E. Cafarell
Clerk of the Court