People v. Tumminia

• Citation: 976 N.Y.S.2d 312,112 A.D.3d 1002,2013 N.Y. Slip Op. 08159
• Parties: The PEOPLE of the State of New York, Respondent, v. Robert W. TUMMINIA, Appellant.
• Decision Date: 05 December 2013
• Court: New York Supreme Court Appellate Division

112 A.D.3d 1002

976 N.Y.S.2d 312

2013 N.Y. Slip Op. 08159

The PEOPLE of the State of New York, Respondent,

v.Robert W. TUMMINIA, Appellant.

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

Dec. 5, 2013.

Torrance L. Schmitz, Vestal, for appellant, and appellant pro se.

Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), for respondent.

Before: PETERS, P.J., ROSE, LAHTINEN and GARRY, JJ.

ROSE, J.

Appeal from an order of the County Court of Broome County (Smith, J.), entered February 9, 2011, which classified defendant as a risk level III sex offender and a sexually violent offender pursuant to the Sex Offender Registration Act.

Defendant pleaded guilty to rape in the first degree after he acknowledged that he used a knife to force the victim to have sexual intercourse with him, and he was sentenced to a prison term of 15 years (People v. Tumminia, 272 A.D.2d 634, 714 N.Y.S.2d 697 [2000], lv. denied95 N.Y.2d 939, 721 N.Y.S.2d 615, 744 N.E.2d 151 [2000] ). In anticipation of defendant's release from prison, the Board of Examiners of Sex Offenders prepared a risk assessment instrument that presumptively classified him as a risk level III sex offender in accordance with the Sex Offender Registration Act ( see Correction Law art. 6–C). County Court conducted a hearing, at the end of which it concurred with the Board's recommendation and rejected defendant's request for a downward departure from the presumptive risk level.

In his pro se brief on appeal, defendant accurately points out that County Court failed to issue the statutorily required written order setting forth its findings of fact and conclusions of law ( seeCorrection Law § 168–n [3] ). Remittal is not required, however, “inasmuch as County Court's oral findings regarding presumptively classifying defendant as a risk level III sex offender ... are clear, supported by the record and sufficiently detailed to permit intelligent review” (People v. Carter, 106 A.D.3d 1202, 1203, 965 N.Y.S.2d 642 [2013]; see People v. Farrell 78 A.D.3d 1454, 1455, 912 N.Y.S.2d 140 [2010] ).

Turning to the merits, defendant now claims that he and the victim were acquainted prior to the attack. The victim denied knowing defendant, however, and defendant gave no reason to believe that they were familiar with each other in his statement to the police. County Court was free to credit this evidence and assess 20 points to defendant under risk factor 7 ( see People v. Milton, 55 A.D.3d 1073, 1073, 866 N.Y.S.2d 795 [2008]; People v. Kaminski, 38 A.D.3d 1127, 1128, 833 N.Y.S.2d 266 [2007], lv. denied9 N.Y.3d 803, 840 N.Y.S.2d 763, 872 N.E.2d 876 [2007] ).

Defendant was also appropriately assessed 15 points under risk factor 11 for his history of drug and alcohol abuse, notwithstanding the fact that he obtained treatment and apparently abstained while he was incarcerated ( see People v. Belile, 108 A.D.3d 890, 890, 969 N.Y.S.2d 228 [2013], lv. denied22 N.Y.3d 853, 2013 WL 5658049 [Oct. 17, 2013]; People v. Legall, 63 A.D.3d 1305, 1306, 883 N.Y.S.2d 318 [2009], lv. denied13 N.Y.3d 706, 2009 WL 2998139 [2009] ). Further, defendant's prison disciplinary history supports County Court's assessment of 10 points under risk factor 13, and we are unpersuaded that Co...