THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. BILLY JOE ARNOLD DEFENDANT APPELLANT (2017)

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 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 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 [that] risk factor’ “ (People v. Kunz, 150 AD3d 1696, 1696 [4th Dept 2017], lv denied 29 NY3d 916 [2017];  see People v. Jackson, 134 AD3d 1580, 1580 [4th Dept 2015] ).  Contrary to defendant's further contention, “ ‘[a]n offender need not be abusing alcohol or drugs at the time of the instant offense to receive points' for that risk factor” (Kunz, 150 AD3d at 1697).

In addition, we conclude that the court providently exercised its discretion in denying defendant's request for a downward departure from his presumptive risk level (see People v. Smith, 122 AD3d 1325, 1326 [4th Dept 2014] ).

Mark W. Bennett

Clerk of the Court