SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

969 

KA 10-01395 

PRESENT: SMITH, J.P., CENTRA, CARNI, GREEN, AND MARTOCHE, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

EDWIN MONTANEZ, DEFENDANT-APPELLANT. 

 

DONALD R. GERACE, UTICA, FOR DEFENDANT-APPELLANT. 

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (JOHN J. RASPANTE OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from an order of the Supreme Court, Oneida County (Barry

M. Donalty, A.J.), entered October 2, 2009. 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.). We reject defendant’s

contention that the assessment of 15 points against him under the risk

factor for drug or alcohol abuse is not supported by the requisite

clear and convincing evidence (see generally § 168-n [3]; Sex Offender

Registration Act: Risk Assessment Guidelines and Commentary, at 15

[2006]). The risk assessment instrument (RAI) presented by the People

contained defendant’s admissions that he began using marihuana at age

9, alcohol at age 12, cocaine at age 25 and crack cocaine by the time

he was in his 30s. Although the RAI sets forth that defendant had

stopped using all substances for a period of time, it further

describes his relapse four years prior to the instant offense. In

addition, defendant admitted that he was intoxicated at the time of

the rape of which he was convicted, and that intoxication, standing

alone, would warrant the assessment of 15 points under the risk factor

for drug or alcohol abuse (Risk Assessment Guidelines and Commentary,

at 15).

Defendant failed to preserve for our review his contention that

he was denied due process because he did not receive all of the

specified information set forth in Correction Law § 168-n (3) prior to

the SORA hearing (see People v Charache, 9 NY3d 829; see also People v

Neuer, 86 AD3d 926; People v Palmer, 68 AD3d 1364, 1365). In any

event, the record demonstrates that defendant was timely and
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KA 10-01395 

adequately notified of the purpose of the SORA hearing and that his

attorney was provided with the RAI, case summary and presentence

report 37 days before the hearing. We therefore conclude that

defendant and his attorney were afforded an ample opportunity to

respond to all aspects of the risk level assessments of the People and

the Board of Examiners of Sex Offenders and thus that defendant was

not denied due process (see generally People v Warren, 42 AD3d 593,

593-594, lv denied 9 NY3d 810; People v Cureton, 299 AD2d 532, lv

denied 99 NY2d 627). 

We reject defendant’s further contention that Supreme Court erred

in assessing 30 points against him under the risk factor for the

number and nature of prior crimes, including a prior violent felony. 

Defendant was convicted of two violent felonies in 1981 and contends

that the lapse of time between those prior convictions and the instant

offense renders the assessment of points under that risk factor

“constitutionally unfair.” That risk factor, however, does not take

into account the timing of any particular prior violent felony (see

Risk Assessment Guidelines and Commentary, at 13-14). In any event,

the recency of an offender’s prior felony or sex crime is taken into

account in risk factor 10 and, inasmuch as defendant’s prior felonies

occurred more than three years prior to the instant offense, he was

not assessed any points under that risk factor. 

Finally, defendant failed to preserve for our review his

contention that the court erred in failing to determine that he was

entitled to a downward departure to a level two risk, having failed to

request such a departure (see People v Ratcliff, 53 AD3d 1110, lv

denied 11 NY3d 708). In any event, we conclude that “defendant failed

to present clear and convincing evidence of special circumstances

justifying a downward departure” (People v McDaniel, 27 AD3d 1158,

1159, lv denied 7 NY3d 703; see People v Fredendall, 83 AD3d 1545).

Entered: October 7, 2011 Patricia L. Morgan

Clerk of the Court