Opinion
256 KA 19-01641
03-26-2021
The PEOPLE of the State of New York, Respondent, v. Eric X. MARTINEZ, Defendant-Appellant.
PAUL B. WATKINS, FAIRPORT, FOR DEFENDANT-APPELLANT. JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (JEFFREY L. TAYLOR OF COUNSEL), FOR RESPONDENT.
PAUL B. WATKINS, FAIRPORT, FOR DEFENDANT-APPELLANT.
JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (JEFFREY L. TAYLOR OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
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 and a sexually violent offender pursuant to the Sex Offender Registration Act ( Correction Law § 168 et seq. ). We affirm.
Contrary to defendant's sole contention, we conclude that County Court properly assessed 15 points under risk factor 11 for his history of substance abuse inasmuch as " ‘[t]he statements in the case summary and [preplea] report with respect to defendant's substance abuse constitute reliable hearsay supporting the court's assessment of points under th[at] risk factor’ " ( People v. Kunz , 150 A.D.3d 1696, 1696, 53 N.Y.S.3d 788 [4th Dept. 2017], lv denied 29 N.Y.3d 916, 2017 WL 3908167 [2017] ; see People v. Turner , 188 A.D.3d 1746, 1747, 132 N.Y.S.3d 908 [4th Dept. 2020] ). The record establishes that defendant began using alcohol and marihuana as a teenager and continued to do so for about a decade, roughly until the time of the underlying sex offenses (see People v. Lopez , 179 A.D.3d 1456, 1456, 119 N.Y.S.3d 322 [4th Dept. 2020], lv denied 35 N.Y.3d 906, 2020 WL 3096817 [2020] ; Kunz , 150 A.D.3d at 1697, 53 N.Y.S.3d 788 ). Additionally, to the extent that defendant preserved the issue for our review (see generally People v. Perry , 174 A.D.3d 1234, 1235, 103 N.Y.S.3d 202 [3d Dept. 2019], lv denied 34 N.Y.3d 905, 2019 WL 6318359 [2019] ), we conclude that the court properly relied on statements in the case summary establishing that, upon his reception into the Department of Corrections and Community Supervision, defendant scored in the "alcoholic" range on a screening evaluation (see People v. Slishevsky , 174 A.D.3d 1399, 1400, 103 N.Y.S.3d 739 [4th Dept. 2019], lv denied 34 N.Y.3d 908, 2020 WL 205912 [2020] ; People v. Leeson , 148 A.D.3d 1677, 1678, 50 N.Y.S.3d 652 [4th Dept. 2017], lv denied 29 N.Y.3d 912, 2017 WL 2468547 [2017] ; cf. People v. Rohoman , 121 A.D.3d 876, 877, 994 N.Y.S.2d 389 [2d Dept. 2014] ; People v. Coger , 108 A.D.3d 1234, 1235, 969 N.Y.S.2d 374 [4th Dept. 2013] ; People v. Madera , 100 A.D.3d 1111, 1112, 953 N.Y.S.2d 385 [3d Dept. 2012] ). The case summary also establishes that defendant was "referred to and engaged in [alcohol and] substance abuse treatment while incarcerated" ( Turner , 188 A.D.3d at 1747, 132 N.Y.S.3d 908 ) which, contrary to defendant's assertion, "further support[s] the court's assessment of points for a history of drug or alcohol abuse" ( People v. Figueroa , 141 A.D.3d 1112, 1113, 33 N.Y.S.3d 812 [4th Dept. 2016], lv denied 28 N.Y.3d 907, 2016 WL 6432828 [2016] ; see People v. Barber , 173 A.D.3d 1857, 1858, 101 N.Y.S.3d 802 [4th Dept. 2019], lv denied 34 N.Y.3d 903, 2019 WL 5558314 [2019] ). Thus, while defendant had also previously represented that his prior use of alcohol and marihuana was occasional only and had denied that he needed treatment, the court was entitled to reject those assertions inasmuch as they are contradicted by defendant's screening evaluation and his referral to and participation in alcohol and substance abuse treatment while incarcerated (see People v. Glanowski , 140 A.D.3d 1625, 1626, 34 N.Y.S.3d 813 [4th Dept. 2016], lv denied 28 N.Y.3d 902, 2016 WL 4742320 [2016] ; People v. Englant , 118 A.D.3d 1289, 1289, 987 N.Y.S.2d 534 [4th Dept. 2014] ). Based on the foregoing, even if it is unclear given his conflicting statements whether defendant also participated in outpatient substance abuse treatment prior to the underlying sex offenses, we conclude that the People nonetheless established by clear and convincing evidence that defendant had a history of substance abuse, thereby warranting the assessment of 15 points under risk factor 11 (see e.g. Slishevsky , 174 A.D.3d at 1400, 103 N.Y.S.3d 739 ; Barber , 173 A.D.3d at 1858, 101 N.Y.S.3d 802 ; see generally Correction Law § 168-n [3] ).