JACKSON, DAVID, PEOPLE v ( 2015 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1413
KA 14-01681
PRESENT: SCUDDER, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
DAVID JACKSON, DEFENDANT-APPELLANT.
MICHAEL J. STACHOWSKI, P.C., BUFFALO (MICHAEL J. STACHOWSKI OF
COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
COUNSEL), FOR RESPONDENT.
Appeal from an order of the Supreme Court, Erie County (John L.
Michalski, A.J.), entered September 5, 2014. 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, Supreme Court properly assessed 15 points under risk
factor 11 for a history of drug or alcohol abuse. That assessment is
supported by the reliable hearsay contained in the presentence report
and the case summary, and defendant admitted at the SORA hearing that
he had a history of drug abuse (see People v Okafor, 117 AD3d 1579,
1580, lv denied 24 NY3d 902; People v Ramos, 41 AD3d 1250, 1250, lv
denied 9 NY3d 809). Defendant’s purported abstinence while
incarcerated “is not necessarily predictive of his behavior when [he
is] no longer under such supervision” (People v Lowery, 93 AD3d 1269,
1270, lv denied 19 NY3d 807 [internal quotation marks omitted]; see
People v Green, 104 AD3d 1222, 1223, lv denied 21 NY3d 860; Ramos, 41
AD3d at 1250).
We reject defendant’s further contention that the People failed
to present clear and convincing evidence to support the assessment of
20 points under risk factor 7, i.e., that the victim was a stranger.
The People “presented evidence establishing that the victim . . . did
not know [defendant’s] legal name, and knew no other personal
information about him” (People v Lewis, 45 AD3d 1381, 1381, lv
denied 10 NY3d 703). The victim gave a general description to the
police of the man who raped her, and defendant was not identified as a
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KA 14-01681
suspect until two years later, when a search of the New York State DNA
Index System resulted in a match between a DNA specimen taken from
defendant and a semen specimen found on slides taken from the victim
as part of her rape kit. Defendant’s assertion during his presentence
investigation that he had met the victim at a “drug house,” without
more, does not establish that they were acquaintances (see generally
People v Odum, 101 AD3d 1693, 1693, lv dismissed 20 NY3d 1094).
Finally, contrary to defendant’s contention, the court properly
assessed 15 points under risk factor 12 for defendant’s failure to
accept responsibility and expulsion from treatment. Defendant
reported during his presentence investigation that the sexual
relations with the victim were consensual, thus establishing his
failure to accept responsibility (see People v Urbanski, 74 AD3d 1882,
1883, lv denied 15 NY3d 707; People v Baker, 57 AD3d 1472, 1473, lv
denied 12 NY3d 706). In addition, the court “properly relied on the
case summary . . . in finding that the defendant refused or was
expelled from[] sex offender treatment” (People v Murphy, 68 AD3d 832,
833, lv dismissed 14 NY3d 812; see People v Guzman, 96 AD3d 1441,
1442, lv denied 19 NY3d 812). The case summary stated that defendant
was removed from sex offender treatment on two occasions for
disciplinary reasons, and has since refused to participate in the
program.
Entered: December 31, 2015 Frances E. Cafarell
Clerk of the Court