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

223
KA 15-00984
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, DEJOSEPH, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MICHAEL NEWMAN, 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 Supreme Court, Monroe County (Daniel
J. Doyle, J.), entered April 27, 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: On appeal from an order determining that he is a
level three risk pursuant to the Sex Offender Registration Act ([SORA]
Correction Law § 168 et seq.), defendant contends that Supreme Court
engaged in impermissible double-counting because his underlying
conviction of criminal sexual act in the first degree (Penal Law
§ 130.50 [4]), which is addressed by risk factor 2, included as an
element the age of the victim while the age of the victim is also
addressed under risk factor 5. We reject that contention. To
preclude consideration of the victim’s age under risk factor 5 in
cases in which the victim’s age is an element of the underlying
offense would contravene SORA’s protective purpose (see Sex Offender
Registration Act: Risk Assessment Guidelines and Commentary at 2
[2006]; see also People v Cabrera, 91 AD3d 479, 480, lv denied 19 NY3d
801; see generally People v Alemany, 13 NY3d 424, 430-431).

     We likewise reject defendant’s challenge to the court’s
assessment of 15 points for a history of drug or alcohol abuse.
Defendant’s case summary and presentence report indicated that he
began to use marihuana at the age of 15, and started to drink alcohol
at the age of 21. Defendant also admitted that he had “a prior
history of treatment for his chemical use [and] . . . that he did not
finish” those treatment programs. “The statements in the case summary
and presentence report with respect to defendant’s substance abuse
constitute reliable hearsay supporting the court’s assessment of
                                 -2-                           223
                                                         KA 15-00984

points under the risk factor for history of drug or alcohol abuse”
(People v Ramos, 41 AD3d 1250, 1250, lv denied 9 NY3d 809; see People
v Jackson, 134 AD3d 1580, 1580). Defendant’s assertions of sobriety
were undermined by the fact that he “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 Lowery, 140 AD3d 1141, 1142, lv denied 28 NY3d 903; People v Perez,
138 AD3d 1081, 1081, lv denied 27 NY3d 913). Although defendant
contends that he is “expected to complete the treatment before his
release,” we note that any “ ‘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:   March 24, 2017                      Frances E. Cafarell
                                               Clerk of the Court
