         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1394
KA 11-02141
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, CARNI, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

EDOUIN ST. JEAN, DEFENDANT-APPELLANT.


THEODORE W. STENUF, MINOA, FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (SUSAN C.
AZZARELLI OF COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Onondaga County Court (Joseph E.
Fahey, J.), dated September 23, 2011. 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: On appeal from an order determining that he is a
level two risk pursuant to the Sex Offender Registration Act
(Correction Law § 168 et seq.), defendant contends that County Court’s
determination of his risk level is not supported by the requisite
clear and convincing evidence (see § 168-n [3]). We reject that
contention. “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 points under the risk
factor for history of drug or alcohol abuse” (People v Ramos, 41 AD3d
1250, 1250, lv denied 9 NY3d 809). Defendant, who admitted to a
probation officer that he occasionally overconsumed alcohol, used
marihuana three to four times a week, and used ecstasy whenever he
could obtain it, believed that he had a substance abuse problem. The
court was entitled to reject defendant’s contention at the hearing
that his use of alcohol and drugs did not constitute “substance abuse”
inasmuch as that contention conflicted with his prior statements as
set forth in the presentence report (see People v Woodard, 63 AD3d
1655, 1656, lv denied 13 NY3d 706).

     Defendant failed to preserve for our review his contention that a
downward departure from his presumptive risk level was warranted (see
People v Gardiner, 92 AD3d 1228, 1229, lv denied 19 NY3d 801). In any
event, defendant’s contention is without merit inasmuch as defendant
failed to present “clear and convincing evidence of special
circumstances justifying a downward departure” (People v McDaniel, 27
                                 -2-                    1394
                                                   KA 11-02141

AD3d 1158, 1159, lv denied 7 NY3d 703).




Entered:   December 21, 2012              Frances E. Cafarell
                                          Clerk of the Court
