FIGUEROA, KENNETH F., PEOPLE v ( 2016 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
631
KA 14-01892
PRESENT: SMITH, J.P., CENTRA, CARNI, CURRAN, AND SCUDDER, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
KENNETH F. FIGUEROA, DEFENDANT-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF
COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.
Appeal from an order of the Supreme Court, Monroe County (Daniel
J. Doyle, J.), entered August 29, 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: Defendant appeals from an order determining that he
is a level two risk pursuant to the Sex Offender Registration Act
(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. The assessment is supported by
reliable hearsay contained in the case summary (see People v Ramos, 41
AD3d 1250, 1250, lv denied 9 NY3d 809; see generally People v Mingo,
12 NY3d 563, 573), which provides that defendant admitted to the
personnel of the Department of Corrections and Community Supervision
“a substance abuse history that included alcohol and marijuana for
which he has never received treatment.” “Furthermore, the record
establishes that defendant was [referred to] drug and alcohol
treatment while incarcerated, thus further supporting the court’s
assessment of points for a history of drug or alcohol abuse” (People v
Mundo, 98 AD3d 1292, 1293, lv denied 20 NY3d 855; see People v
Englant, 118 AD3d 1289, 1289). We note that defendant “presented no
evidence to the contrary” but merely pointed to an inconsistent
statement in the presentence report wherein he denied any alcohol or
substance abuse (People v Kyle, 64 AD3d 1177, 1178, lv denied 13 NY3d
709).
Entered: July 1, 2016 Frances E. Cafarell
Clerk of the Court