People v. Davis , 23 N.Y.S.3d 492 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: January 28, 2016 519803
________________________________
THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
JIMMY DAVIS,
Appellant.
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Calendar Date: December 15, 2015
Before: Peters, P.J., Garry, Rose and Devine, JJ.
__________
James P. Milstein, Public Defender, Albany (Theresa M.
Suozzi of counsel), for appellant.
P. David Soares, District Attorney, Albany (Michael C.
Wetmore of counsel), for respondent.
__________
Garry, J.
Appeal from an order of the Supreme Court (Breslin, J.),
entered July 31, 2013 in Albany County, which classified
defendant as a risk level III sex offender pursuant to the Sex
Offender Registration Act.
In 1988 in Colorado, defendant pleaded guilty to sexual
assault in the second degree and was sentenced to six years in
prison. After his release from prison, defendant relocated to
Albany County and was required to register as a sex offender. To
that end, the People submitted a risk assessment instrument
pursuant to the Sex Offender Registration Act (see Correction Law
art 6-C), which assessed 120 points against defendant and
presumptively classified him as a risk level III sex offender.
-2- 519803
Following a hearing, Supreme Court declined defendant's request
for a downward departure and classified defendant as a risk level
III sex offender. Defendant appeals.
Defendant contends that his risk level III classification
is not supported by clear and convincing evidence, particularly
with regard to the assignment of 15 points in risk factor 11 for
history of drug and alcohol abuse. We agree. The People bear
the burden of proving the facts supporting the determination of a
defendant's risk level by "clear and convincing evidence"
(Correction Law § 168-n [3]; see People v Mingo, 12 NY3d 563, 571
[2009]). Here, there is no indication in the record that drugs
or alcohol played a role in the instant offense. In assessing
defendant points for a history of drug and alcohol abuse, the
People relied on defendant's failure to comply with a parole
condition that he attend a drug and alcohol treatment program.
There is, however, no information to indicate that defendant was
screened for substance abuse issues nor does the record reflect
any reason why substance abuse treatment was a condition to
parole (see People v Coger, 108 AD3d 1234, 1235 [2013]).
Furthermore, the condition placed on defendant over 20 years ago
is excessively remote (see People v Ross, 116 AD3d 1171, 1172
[2014]; People v Irizarry, 36 AD3d 473, 473 [2007]). Absent
other evidence demonstrating a history of substance abuse, we
find that the People failed to establish by clear and convincing
evidence that the 15-point assessment for history of drug and
alcohol abuse is proper (see People v Palmer, 20 NY3d 373, 378-
380 [2013]; People v Mabee, 69 AD3d 820, 820 [2010], lv denied 15
NY3d 703 [2010]; compare People v Brownell, 66 AD3d 1060, 1061
[2009]). Accordingly, defendant's score on the risk assessment
instrument would be reduced from 120 to 105, rendering him a
presumptive risk level II sex offender. Nevertheless, the record
reflects that Supreme Court also factored in that the risk
assessment instrument did not include points for defendant's
felony conviction of failure to register, for which 10 points are
assessed, and this would elevate defendant's risk assessment
level. In view of this, we decline to disturb the classification
of defendant as a risk level III sex offender. Defendant's
remaining contentions, to the extent that they are properly
before us, are unpersuasive.
-3- 519803
Peters, P.J., Rose and Devine, JJ., concur.
ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court