MOSHMAN, JASON M., PEOPLE v ( 2016 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
651
KA 14-02104
PRESENT: CENTRA, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
JASON M. MOSHMAN, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF
COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (DAVID A.
HERATY OF COUNSEL), FOR RESPONDENT.
Appeal from an order of the Erie County Court (Kenneth F. Case,
J.), dated September 26, 2014. 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: On appeal from an order determining that he is a
level two risk pursuant to the Sex Offender Registration Act
(Correction Law § 168 et seq.), defendant contends that County Court
erred in assessing 15 points against him under risk factor 11 based
upon his history of drug and alcohol abuse. We reject that contention
inasmuch as “ ‘[t]he statements in the case summary . . . with respect
to defendant’s substance abuse constitute reliable hearsay supporting
the court’s assessment of points under the risk factor for history of
drug or alcohol abuse’ ” (People v St. Jean, 101 AD3d 1684, 1684).
Furthermore, based on defendant’s admissions to a history of substance
abuse and regular past use of marihuana, along with his “unacceptable”
performance in an alcohol and substance abuse treatment program, we
conclude that there is clear and convincing evidence that defendant
had a history of substance abuse, and the court properly assessed the
disputed 15 points (see People v Mundo, 98 AD3d 1292, 1293, lv denied
20 NY3d 855; People v Ramos, 41 AD3d 1250, 1250, lv denied 9 NY3d 809;
see also People v Merkley, 125 AD3d 1479, 1479; see generally § 168-n
[3]).
Entered: July 8, 2016 Frances E. Cafarell
Clerk of the Court