        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

629
KA 15-01176
PRESENT: CARNI, J.P., LINDLEY, DEJOSEPH, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ROBERT J. KUNZ, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Monroe County Court (John L. DeMarco,
J.), dated May 22, 2015. 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 properly assessed 15 points under risk factor
11 for a history of drug or alcohol abuse inasmuch as “[t]he
statements in the case summary and presentence 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
Ramos, 41 AD3d 1250, 1250, lv denied 9 NY3d 809; see People v Jackson,
134 AD3d 1580, 1580). The SORA guidelines justify the addition of 15
points under risk factor 11 “if an offender has a substance abuse
history or was abusing drugs and or [sic] alcohol at the time of the
offense” (Sex Offender Registration Act: Risk Assessment Guidelines
and Commentary at 15 [2006] [emphasis added]). Indeed, “[a]n offender
need not be abusing alcohol or drugs at the time of the instant
offense to receive points” for that risk factor (id.; see People v
Lewis, 50 AD3d 1567, 1568, lv denied 11 NY3d 702; see generally People
v Palmer, 20 NY3d 373, 377-378).

     Here, according to the presentence report, defendant “started
using marihuana as a teenager,” and “he used this substance regularly”
(see People v Merkley, 125 AD3d 1479, 1479; People v Carswell, 8 AD3d
1073, 1073, lv denied 3 NY3d 607). The extent and regularity of
defendant’s marihuana use was bolstered by a previous diagnosis of
“Cannabis Abuse,” which was also noted in the presentence report.
                                 -2-                           629
                                                         KA 15-01176

Moreover, “defendant was required to attend 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 Perez, 138 AD3d
1081, 1081, lv denied 27 NY3d 913). Defendant also admitted that he
“last used marihuana in October of 2002,” which was proximate in time
to his arrest for the underlying offense (see Lewis, 50 AD3d at 1568).
Although defendant completed an Alcohol and Substance Abuse Treatment
Program, a “ ‘recent history of abstinence while incarcerated is not
necessarily predictive of his behavior when no longer under such
supervision’ ” (People v Vangorder, 72 AD3d 1614, 1614; see Jackson,
134 AD3d at 1580-1581; People v Urbanski, 74 AD3d 1882, 1883, lv
denied 15 NY3d 707).




Entered:   May 5, 2017                         Frances E. Cafarell
                                               Clerk of the Court
