PEOPLE v. KYLE

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Supreme Court, Appellate Division, Fourth Department, New York.

The PEOPLE of the State of New York, Respondent, v. Howard M. KYLE, Jr., Defendant-Appellant.

Decided: July 02, 2009

PRESENT:  SCUDDER, P.J., SMITH, CENTRA, PERADOTTO, AND GREEN, JJ. David J. Farrugia, Public Defender, Lockport (Joseph G. Frazier of Counsel), for Defendant-Appellant. Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of Counsel), for Respondent.

Defendant appeals from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act ( [SORA] Correction Law § 168 et seq.).   Defendant failed to preserve for our review his contention that his waiver of his right to a SORA hearing was not knowing, voluntary or intelligent (see generally People v. Costas, 46 A.D.3d 475, 848 N.Y.S.2d 643, lv. denied 10 N.Y.3d 716, 862 N.Y.S.2d 337, 892 N.E.2d 403;  People v. Gliatta, 27 A.D.3d 441, 810 N.Y.S.2d 342) and, in any event, that contention lacks merit (see Gliatta, 27 A.D.3d 441, 810 N.Y.S.2d 342).   Although defendant also failed to preserve for our review his contention that County Court erred in assessing points against him under the risk factor based on his history of drug and alcohol abuse (see People v. Roland, 292 A.D.2d 271, 739 N.Y.S.2d 694, lv. denied 98 N.Y.2d 614, 751 N.Y.S.2d 169, 780 N.E.2d 980), we note in any event that his contention lacks merit.   The People presented clear and convincing evidence of defendant's history of drug and alcohol abuse (see People v. Ramos, 41 A.D.3d 1250, 839 N.Y.S.2d 383, lv. denied 9 N.Y.3d 809, 844 N.Y.S.2d 785, 876 N.E.2d 514;  People v. Vaughn, 26 A.D.3d 776, 777, 809 N.Y.S.2d 718), and defendant presented no evidence to the contrary.

Finally, defendant failed to preserve for our review his contention that the court erred in assessing 15 points against him under the risk factor for acceptance of responsibility (see People v. Lewis, 50 A.D.3d 1567, 1568, 856 N.Y.S.2d 787, lv. denied 11 N.Y.3d 702, 864 N.Y.S.2d 389, 894 N.E.2d 653) and, in any event, that contention is without merit.   Although defendant pleaded guilty to the crime underlying the SORA determination, he showed no remorse in his statement to the probation officer and blamed the crime on his use of drugs and alcohol.   The court properly concluded that defendant's statement did not “reflect a genuine acceptance of responsibility as required by the risk assessment guidelines developed by the Board [of Examiners of Sex Offenders]” (People v. Noriega, 26 A.D.3d 767, 808 N.Y.S.2d 529, lv. denied 6 N.Y.3d 713, 816 N.Y.S.2d 748, 849 N.E.2d 971 [internal quotation marks omitted] ).

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

MEMORANDUM: